Reviewing Wrongful Convictions Is the Only Way to Prevent Them: Reflections on the Non-Prosecution Disposition of the Author of "Fatal Scientific Evidence in the Wrongful Death of Chiang Kuo-Ching"

Introduction

The 2004 Madrid train bombings in Spain resulted in 191 deaths and over 2,000 injuries. In that case, an erroneous fingerprint identification by the Federal Bureau of Investigation led to the wrongful detention of Brandon Mayfield for two weeks, causing a stir in the international scientific community and severe condemnation by the media. British forensic expert Allan Bayle harshly criticized: "How many more innocent people are sitting in prison because of erroneous FBI fingerprint identifications?" (Note 1). To investigate the truth and review the wrongful detention, the Department of Justice formed a task force to investigate. The FBI issued an apology, ceased renewing contracts with external experts, and adopted four measures for internal examiners: (1) immediately suspended identification work, (2) re-examined all identification cases previously handled, (3) conducted proficiency testing, and (4) provided retraining. The U.S. government paid 2 million U.S. dollars in compensation for the case, and the Department of Justice released a 330-page investigative report following the inquiry.

In the American case, the scientific evidence that caused the miscarriage of justice was subjected to such severe criticism. By contrast, in Taiwan's Chiang Kuo-ch'ing wrongful death case (hereinafter referred to as the Chiang case), although judicial documents described scientific evidence as the key to solving the case, the forensic experts who provided the scientific evidence and the pseudo-scientific evidence itself were treated as sacred and inviolable. This is because the government only addresses accountability for torture while ignoring accountability for wrongful convictions; those who raise questions about wrongful conviction responsibility are met with criminal prosecution. The author of the Chiang case wrote an article analyzing the responsibility for wrongful convictions, calling on the government to review scientific evidence and prevent future wrongful convictions. Shortly after the publication, the author was threatened with criminal punishment, the destruction of the magazine, and other unpredictable influences by the Investigation Bureau of the Ministry of Justice (MJIB). Finding it difficult to fight alone against dark forces and facing trial without adequate defense, the author was fortunate to receive support from the Judicial Reform Foundation (JRF) and the Taiwan Higher Education Union (THEU), and the District Prosecutors Office eventually concluded the case with a non-prosecution disposition. However, seeing that the government failed to emulate the handling model of the aforementioned wrongful conviction case to conduct a review, any expectation of preventing future wrongful convictions is nothing short of wishful thinking. As past cases of vindication by the JRF demonstrate, pseudo-scientific evidence does not occur in just a single case; only by eliminating pseudo-scientific evidence can the next tragedy be stopped. Therefore, we once again call upon the government: to prevent wrongful convictions, please first review wrongful convictions.

"Fatal Scientific Evidence in the Wrongful Death of Chiang Kuo-ch'ing" Constitutes Factual Statements and Reasonable Comment

On January 29, 2011, media outlets reported on the Chiang case. The president at the time instructed that a comprehensive review be conducted without fear of airing dirty laundry in public, emphasizing that miscarriages of justice like this must never be allowed to happen again. Serving as the Director of the Institute of Forensic Medicine, Ministry of Justice at the time, and driven by duty and conscience, the author published an article titled "Fatal Scientific Evidence in the Wrongful Death of Chiang Kuo-ch'ing" (hereinafter referred to as the Chiang Article) in Vol. 3, No. 2 of the Taiwan Journal of Forensic Medicine to analyze the matter. However, due to his official position, he was accused by an anonymous whistleblower to the Presidential Office and the Executive Yuan of lacking morality for publicly disclosing forensic contents, violating the human rights of the forensic personnel in the case, and leaking confidential forensic secrets. Furthermore, the MJIB lodged a protest with the Ministry of Justice, intending to prosecute the author for insult to public offices and severe damage to the unified image of the Ministry, among other charges. Seeking to preserve the bigger picture and respect the institutional framework, the author apologized to the Ministry of Justice. Yet, the article in question faithfully cited indictments and judgments from successive military and judicial authorities to state the fatal scientific evidence of the Chiang case, and all forensic contents cited were drawn from public documents. Where were the lack of morality, human rights violations, or leaking of secrets? The anonymous whistleblower did not seek justice for the wrongfully deceased victim, but instead filed complaints on behalf of those who provided the fatal scientific evidence—which is astonishing. Without distinguishing right from wrong, the Investigation Bureau demanded that the author issue a formal apology within a set deadline, destroy the physical magazine issues of that journal special edition, electronic files, internet search results, and publisher inventory, and requested a list of readers for their inspection. When the author failed to comply with these demands, he was charged with defamation.

After a half-year investigation, the district prosecutors office handling the case concluded it with a non-prosecution disposition, determining that the "Chiang Article" still fell within the scope of "statements of fact," evidently constituted commentary on matters of public interest, and had not exceeded the boundaries of the "principle of fair comment." It therefore remained protected under the freedom of speech guaranteed by the Constitution, making it difficult to infer any unlawful intent to defame.

The Investigation Bureau Should Issue a Public Apology for This Lawsuit, and the Ministry of Justice Should Review the Chiang Case to Prevent Future Wrongful Convictions

On July 31, 2012, the MJIB issued official letter No. 10123513630 under the name of Director-General Wang Fu-lin (王福林), claiming that the "Chiang Article" "suspectedly allowed unspecified persons to perceive and learn of it, which is sufficient to disparage the social evaluation of this Bureau, involving the offense of public insult to a public office under Paragraph 2 of Article 140 of the Criminal Code and the aggravated defamation offense under Paragraph 2 of Article 310 of the same Code, seriously damaging the unified image of the Ministry of Justice as well as this Bureau's reputation and morale." It demanded that the author "first author an apology in the *Justice Newsletter* or make an oral apology at the departmental meeting to be put on the record, and subsequently write a clarification in the *Taiwan Journal of Forensic Medicine* (or a comparable magazine such as *Criminal Science* or the *Annual Conference Proceedings of the Taiwan Academy of Forensic Sciences*), the content of which must be approved by this Bureau and completed within the submission deadline... The amount of compensation and subsequent actions by this Bureau proposed during the coordination meeting will be reconsidered based on Your Excellency's effectiveness and sincerity in executing the above three items." Such intimidation using criminal penalties and damages, coupled with demands for a written confession of wrongdoing and a meticulously arranged apology, is unprecedented. It virtually sought to erase the author and the article from existence, commanding awe for the Investigation Bureau's professional resolve to "eradicate evil completely."

Recently, the author received the non-prosecution disposition from the district prosecutors office, immediately feeling as though waking from a nightmare; the actions taken by the MJIB were disgraceful. What facts are reflected in the non-prosecution disposition? The true culprit behind the "disparagement of the social evaluation of this Bureau" seems to be the Bureau's own forensic report on the Chiang case, while the true culprit behind the "damage to the unified image of the Ministry of Justice and this Bureau's reputation and morale" appears to be the Ministry's own degeneration. Regarding the intimidation via official correspondence and the defamation lawsuit, the Investigation Bureau should issue a public apology, and the Ministry of Justice should genuinely review the Chiang case in accordance with the president's instructions to prevent future wrongful convictions.

Forensic Experts Treated as Sacred and Inviolable, Casting Doubt on Judicial Adjudication Quality

Forensic analyses conducted by experts should naturally possess a certain standard of professionalism. However, when the author reviewed the scientific evidence of the Chiang case using publicly available judicial documents, he shockingly discovered that the national-level MJIB laboratory used a blood-testing reagent to test for semen (Note 2), and claimed that evidence DNA included the suspect's DNA profile even though it was inconsistent with the suspect's DNA (Note 3). Meanwhile, the forensic pathology report stated that inconsistent DNA profiles showed no contradiction; described a sharp murder weapon as a blade-shaped blunt-edged foreign object; claimed that when the murder weapon pierced the body it caused no stab wounds, but instead caused tearing wounds from a blunt object that could displace the intestinal tract by 25 centimeters; and a forensic report dated September 30, 1996, even cited an MJIB DNA report that was only officially issued on October 7 of the same year (Note 3). Such chaotic anomalies violating empirical rules actually originated from forensic experts at a national laboratory. Yet when faced with questioning, these forensic experts threatened lawsuits for defamation and insult to public offices, effectively proclaiming that forensic reports are sacred, inviolable, and immune to scrutiny—which is staggering.

Talent in forensic science is scarce in Taiwan and largely concentrated within judicial forensic institutions; consequently, very few peers are willing to question forensic reports. In the absence of checks and balances, long-standing self-importance has led forensic experts to view their profession as sacred and inviolable, believing that forensic medicine and criminal identification are exclusive domains for a select group of "insiders" where "outsiders" are not permitted to opine even when mistakes are made. Afraid of scrutiny, they dismiss critics as non-professionals, reject their opinions, disparage their expertise, and ultimately invalidate their qualifications to comment. For example, according to page 39 of the trial transcript dated July 16, 2012, for Case No. 100-Shu-Tsu-Keng-(San)-1 of the Taiwan High Court regarding the Su Chien-ho case (hereinafter referred to as the Su case), an expert witness responded to defense counsel questioning the credibility of their testimony in the Su case based on the "Chiang Article" by stating: "...he is merely a scholar doing DNA work, yet he presumes to criticize our forensic medicine and criminal identification. This is deeply unfair and violates forensic ethics..."; on page 40, the prosecutor stated: "I emphasize repeatedly, this is not Lee Jun-yih's (李俊億) specialty. When a person steps outside their own specialty into other fields, it is an amateur pretending to be a professional, and it has nothing to do with this case...". However, the forensic pathology report in the Chiang case was found to contain forensic fallacies violating empirical rules precisely by this critic whom they labeled "non-professional." Is this fallacy a disgrace to the forensic doctor or to the critic? Was this fallacy committed by the critic "an amateur pretending to be a professional" or by the forensic doctor "an amateur pretending to be a professional"? Was it the critic who "violated forensic ethics" by allegedly "leaking forensic secrets," or the forensic doctor who "violated forensic ethics" by providing an erroneous forensic report that led to a wrongful death? Did this wrongful death case demonstrate a lack of professionalism on the part of the critic or the forensic doctor? If judicial organs fail to carefully select forensic institutions and experts, the quality of judicial adjudication remains gravely concerning.

Judicial Forensic Personnel Should Strengthen Continuing Education

Forensic science is a broad applied science encompassing crime scene investigation, firearms, tool marks, documents, fingerprints, toxicology, serology, DNA, and forensic pathology. Beyond an individual's specialized sub-discipline, all other forensic subjects must be mastered as part of an examiner's expertise. In terms of forensic principles, one must not only conform to the specific forensic specialty but also possess basic scientific knowledge, such as empirical rules, logical rules, and scientific principles. The six aforementioned fallacies—such as using blood-testing reagent to test for semen—all severely violate empirical rules. Since such grave errors can be identified through empirical rules alone, how can one not worry about the forensic quality produced by these forensic and medical experts in other cases? As for the prosecutor's accusation of an "amateur pretending to be a professional," the narrative in the Chiang case forensic report stated: "Among them, '18J' and the submitted evidence 11-1 contain the victim's blood and the suspect's semen; after comparative analysis of at least six blood group genotypes, there is no contradiction" (Note 4). This shows that the report emphasized that through six blood group genotype comparisons there were no contradictions, whereas in reality, there were contradictions in two genotypes, DQα and GYPA. This indicates that the DNA identification in this case was not within the forensic medical expertise of those forensic doctors, nor was this specimen a forensic biological sample, yet the forensic doctors nevertheless made a determination regarding the suspect's DNA identification results in the report—and misjudged it. Does this fit the prosecutor's reprimand of an "amateur pretending to be a professional"? Is the forensic doctor himself precisely what was described as "violating forensic ethics"?

In the field of forensic science, to prevent phenomena such as "amateurs pretending to be professionals" and "violations of forensic ethics," requiring judicial forensic personnel to undergo continuing education is an operating standard in advanced countries. In addition to studying the aforementioned forensic sciences, forensic personnel must reinforce continuing education to ensure that their forensic expertise keeps pace with the times. Conversely, domestic forensic and medical personnel, once entering the civil service system, lack any relevant professional continuing education or lifelong learning systems to strengthen their professional capabilities. This raises worrisome questions as to whether forensic experts' identification skills atrophy as their seniority accumulates, or even fail to pass basic tests of common sense and logic—which deserves serious attention.

Freedom of Speech and Academic Freedom Should Be Protected

Upon learning of this matter, the JRF—which has long promoted judicial reform movements and sought vindication for Chiang Kuo-ch'ing—had its *Judicial Reform Magazine* disregard threats of lawsuits and demands for publication destruction from the Investigation Bureau and successively published "An Analysis of the Fatal Scientific Evidence in the Wrongful Death of Chiang Kuo-ch'ing" (Note 2) and "Yet Another Unspeakable Truth About Semen Identification" (hereinafter referred to as the Semen Article) (Note 5). These publications reminded the public that the errors in the MJIB's DNA identification appeared not to be isolated incidents and called on all sectors to value judicial forensic quality. Their fearless defense of freedom of speech and upholding of justice, alongside JRF lawyers Lin Yung-sung (林永頌) and Yen Hsin-yin (嚴心吟) who volunteered as defense counsel for this case, are truly admirable.

The THEU also issued a statement on March 19 of this year titled "A Solemn Condemnation and Statement Regarding the Infringement of Academic Freedom" (Note 6), with the subtitle: "We cannot remain silent in the face of institutional injustice and social inequity; we must unite to defend freedom of speech and academic freedom—A solemn condemnation and statement regarding the infringement of academic freedom by the Formosa Plastics Group and the Investigation Bureau of the Ministry of Justice." The statement expressed solidarity with National Chung Hsing University Department of Environmental Engineering Professor Chuang Ping-chieh (莊秉潔) and the author, who were both suffering adverse consequences for speaking out after being sued by the Formosa Plastics Group and the MJIB, respectively. The statement declared: "We condemn and demand that the Formosa Plastics Group and the Investigation Bureau of the Ministry of Justice respectively withdraw their legal actions against the two scholars. If they disagree with the academic views of the two scholars, they should put forth their own academic views for rebuttal rather than abusing litigation procedures. We also call upon all academic workers to unite, viewing any infringement upon the freedom of speech and academic freedom of individual academic workers as an assault upon all academic workers, and to provide individual academic workers with necessary support and assistance. We also earnestly appeal to all sectors of society to voice solemn protests against the new political and economic authoritarian structures that may be formed by powerful entities in Taiwanese society, and to jointly safeguard our democratic system." This statement ensured that academic workers previously unacquainted with the author did not feel alone on the path toward pursuing truth, upholding human rights, and defending justice; sincere gratitude is hereby expressed.

Do Prosecutor's Office Dialogues and the Non-Prosecution Disposition Reveal Institutional Degeneration and the Truth of the Chiang Case?

During the prosecutor's office coordination session, in response to the prosecutor, the author expressed a willingness to visit the MJIB and deliver a public report to the Bureau Director and all officials, forensic experts, and external experts invited by the Bureau regarding the evidential basis for the MJIB forensic errors mentioned in the "Chiang Article," accepting questions and challenges to clarify the facts and contribute in a modest way to preventing future wrongful convictions. However, the opposing party rejected this. The gist of their dialogue was roughly: "If this happens, you will not see me at the next court hearing; when the prosecutor asked why, the reply was: 'Because if the Director learns of these details, I will be dismissed.'" What message does this dialogue convey? It is food for thought. Even so, the prosecutor still asked the opposing party to make arrangements, but that good intention ultimately failed to materialize. Does the Director of the Investigation Bureau know to this day that Chiang Kuo-ch'ing was wrongfully executed? Does he know that the Bureau's semen and DNA identification reports have been determined by judicial authorities to "lack reliability, credibility, or have questionable credibility"? Under such circumstances, how can one not worry about how a national-level laboratory can elevate its forensic quality and prevent miscarriages of justice?

Should Similar Forensic Cases Handled by the Investigation Bureau Be Re-examined?

The fact that the MJIB laboratory used blood-testing reagent to test for semen, claimed evidence DNA included the suspect's DNA profile when it was inconsistent with the suspect, and committed the fallacies mentioned in the "Semen Article" indicates that the errors in the Bureau's DNA identification may not be isolated incidents. Beyond DNA identification, regarding polygraph testing, the Air Force Operations Command judgment in the Chiang case states: "Based on the polygraph identification report conducted by the MJIB on the defendant, it was discovered that he was heavily implicated and thus he was targeted." This shows that the critical role played by this polygraph identification in causing the wrongful death of Chiang Kuo-ch'ing cannot be underestimated. Recently, using the keyword "Investigation Bureau polygraph" in the Judicial Yuan's Legal Database System, a sampling of Taiwan High Court judgments alone yielded 567 results, demonstrating the astonishing volume of such tests used as a basis for adjudication. Notably, on January 2, 1997, the head of the Bureau's polygraph laboratory mentioned in an exclusive interview with the *United Evening News* that polygraph testing is a symbol of human rights protection (Note 7), citing an example: "In the Air Force Operations Command girl rape-murder case, the Air Force Headquarters sent four suspects for testing. Through polygraphs, he eliminated three, and the remaining one showed deceptive reactions—surely enough, he was the murderer." However, the case ultimately revealed that the person deemed a liar by the polygraph expert was actually a wrongfully executed innocent person. If the application of polygraphs is entirely unrestrained, could it likewise become an assassin of human rights?

Should Similar Forensic Cases Handled by the Institute of Forensic Medicine Be Re-examined?

When the "Chiang Article" examined the forensic pathology report using empirical rules, it revealed the four incredible fallacies mentioned above. Do these, together with the fallacies noted in the "Semen Article," point to a shortage of forensic medical expertise? According to the 2011 annual report of the Institute of Forensic Medicine, Ministry of Justice, the institute averages approximately 2,000 autopsy identification cases annually. If forensic medical experts draft or review identification reports using this fallacious logic, are the consequences not deeply concerning? Taking the aforementioned Su case as an example, on page 110 of the same transcript, the defense counsel questioned the Su case forensic doctor (who was also the forensic doctor in the Chiang case) regarding an article published by him based on knife mark experiments on pig bones. Pointing out the contradiction between the knife mark evidence presented and his research conclusions, counsel asked: "Is it true that through live pig bone experiments, it was found that because live bones possess elasticity, tool marks cannot truly reflect the blade angle of the knife? Is that correct?" The forensic doctor replied: "I do not remember saying that. Generally speaking, we can reflect the true knife and blade angle, and your statement is certainly incorrect." Defense counsel then asked: "Do you believe such a conclusion can reflect the true knife and blade angle?" The forensic doctor replied: "Certainly."

Upon investigation, the forensic doctor's pig bone experiment results were published in the *Journal of Forensic Sciences*, Vol. 56, No. 4, 2011, pp. 967–971, under the title: *A Method for Studying Knife Tool Marks on Bone* (Note 8). The content questioned by the lawyer is the first sentence of the conclusion on page 970 of the article, which reads in the original text:

“As living bones have elasticity, knife tool marks on bones often fail to reflect the knife angle in an attempted practical interpretation.”

Translated into Chinese, it reads: "由於活體骨頭具有彈性，因此在實際研判時，骨頭上的刀痕通常無法反映出刀刃的角度。"

The forensic doctor indeed stated in his research conclusion that it "fails to reflect the knife angle," yet in his sworn testimony he contradicted his own research conclusion, stating that it "can reflect the true knife and blade angle." This raises astonishing questions: does a forensic doctor who gives such testimony still possess public credibility, or might he have made false statements under oath? In particular, the article records that this research was a technology project commissioned by the Institute of Forensic Medicine, Ministry of Justice, under project number 98-1301-05-0403. Research shows that the project was titled "Research on Bone Knife Mark Angles and Blunt Injury Dynamics Analysis," with the forensic doctor serving as the principal investigator and a budget of 2.81 million NTD (Note 9). Given that the government already provided funding to conduct research to help clarify the facts of the case, and the conclusions had already been published, why did the forensic opinion in that case contradict his own research conclusion—and even the forensic expert's own research results? It boggles the mind. In the end, the defendants in the Su case were acquitted. Does this show that only professional defense counsel and sagacious judges can avoid being hoodwinked, while whether other similar cases are this fortunate remains completely unknown?

Recommendations to Prosecute Perjury and Abolish the Offense of Insult to a Public Office

The "Chiang Article" noted precisely what the Investigation Bureau extracted from evidence item 11-1 for analysis back then, yet the Bureau's forensic personnel gave two differing testimonies regarding the sampling of this exhibit: one stating it was a blood-stained speck, and the other stating it was not a blood-stained speck. Whether the latter testimony was altered because the prosecutor pointed out that cross-contamination occurs during blood-stained semen identification is worth exploring. If the forensic personnel's testimony here constituted false statements made to shirk responsibility, it may potentially involve the offense of perjury.

Using the accusation that the "Chiang Article" "suspectedly allowed unspecified persons to perceive and learn of it, which is sufficient to disparage the social evaluation of this Bureau, involving the offense of public insult to a public office under Paragraph 2 of Article 140 of the Criminal Code..." to intimidate the author into apologizing and writing a letter of repentance fully demonstrates the majestic pomp of official authority. The Investigation Bureau engages in judicial forensic operations, yet the erroneous polygraph and evidence forensic reports it submitted implicating suspects in the Chiang case have been determined by judicial authorities to "lack reliability, credibility, or have questionable credibility." Does it not bear a substantial degree of responsibility for the Chiang case? Instead of feeling ashamed and conducting self-examination, it struck first to make an example of others, coercing critics with defamation and insult to public offices in an attempt to silence dissenting voices. Is this done to protect dignity or to cover up shame? One cannot help but suspect otherwise. Therefore, it is recommended that the offense of insult to a public office under the *Criminal Code* be abolished to allow government agencies to be subject to public oversight, especially since the duties of judicial forensic institutions profoundly impact human rights and demand even greater scrutiny.

Conclusion

More than two years have passed since the media sensationally broke the Chiang case, and the president at the time ordered a comprehensive review. Yet to this day, judicial authorities have only pursued accountability for torture, not for the wrongful conviction itself. Accountability for wrongful convictions should begin by investigating those who provided the scientific evidence. Both the indictment and the judgment in the death penalty case devoted substantial space to listing scientific evidence to prove that Chiang Kuo-ch'ing committed rape and murder. Furthermore, according to the Control Yuan's correction official document, Chiang was targeted and subjected to torture only after the forensic report was submitted, highlighting the crucial role of scientific evidence in this case. Most of the investigated military intelligence officers have already retired or been discharged, making it impossible for them to cause another wrongful conviction. However, if a miscarriage of justice was caused by pseudo-scientific evidence provided by forensic experts, it is tantamount to indirectly killing an innocent person—how can we fail to investigate the individual and institutional responsibilities? If such experts are still in office, could they continue to wreak havoc? Might their past forensic reports have caused miscarriages of justice in other cases? It is recommended that the government follow the example of the Mayfield case in the United States by assembling an ad hoc task force of multidisciplinary experts to thoroughly investigate the causes of wrongful convictions, review and make improvements, thereby ensuring judicial fairness, protecting human rights, and preventing future miscarriages of justice.

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Notes

1. David Heath, Bungled fingerprints expose problems at FBI, The Seattle Times, 2004, June 7.
2. Lee Jun-yih, An Analysis of the Fatal Scientific Evidence in the Wrongful Death of Chiang Kuo-ch'ing, *Judicial Reform Magazine*, December 2012, No. 93, pp. 28-32.
3. Lee Jun-yih, Fatal Scientific Evidence in the Wrongful Death of Chiang Kuo-ch'ing, *Taiwan Journal of Forensic Medicine*, December 2011, Vol. 3, No. 2, pp. 1-10.
4. Air Force Operations Command, 1996 Ching-Pan-Tzu No. 061 Judgment.
5. Lee Jun-yih, Yet Another Unspeakable Truth About Semen Identification, *Judicial Reform Magazine*, February 2013, No. 94, pp. 28-31.
6. Taiwan Higher Education Union, A Solemn Condemnation and Statement Regarding the Infringement of Academic Freedom, March 19, 2013, URL: http://2012theunion.blogspot.tw/2013/03/blog-post.html.
7. United Daily News Knowledge Base news from January 2, 1997, URL: http://udndata.com/library/.
8. Shaw KP, Chung JH, Chung FC, Tseng BY, Pan CH, Yang KT, Yang CP. A method for studying knife tool marks on bone. J Forensic Sci. 2011, 56(4):967-71.
9. Government Research Information System, Query No.: PG9901-0514, URL: http://grbsearch.stpi.narl.org.tw/GRB/.