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 Can Science Enhance Equity? Findings and Implications From a Study To Detect Bruising on Victims with Dark Skin Pigmentation

August 24, 2023
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                  NIJ Research Conference
This plenary panel from the 2023 NIJ Research Conference features fascinating research on a methodology to improve the detection and documentation of bruises on victims of violence who have dark skin pigmentation. This study highlights the intersection between science, justice, and racial equity, featuring practitioner and victims’ advocacy perspectives. The discussion describes the research and its findings and explore strategies to ensure that this particular evidence-based methodology can be widely implemented by nurse practitioners in the field.

Participants:

Carrie Johnson, National Public Radio’s Justice Correspondent (facilitator) ​​​​
	Katherine Scafide, Associate Professor at George Mason University
	Kimberly Foxx, Cook County (Illinois) State’s Attorney
	Chantel Hammond, Forensic Nurse Specialist, International Association of Forensic Nurses
	Janine Zweig, Executive Science Advisor, National Institute of Justice (introduction)
  
  
          Transcript
NANCY LA VIGNE: I'm now going to pass the mic to a dear friend and colleague of mine, Dr. Janine Zweig, Executive Science Advisor at NIJ. Janine is a new addition to the NIJ team. As a senior executive service position at NIJ, this is a career highest level of government position you can hold, and she oversees all science matters for NIJ. She's also a former colleague of mine at the Urban Institute where we had the pleasure of working together for well over almost two decades. —She has expertise in areas of victimization and intimate partner violence, and she’s an all-around wonderful person who is a scholar in her own right, having conducted both qualitative and quantitative studies, longitudinal studies, multi-site evaluations. She is the real deal. Janine, I am so delighted that you are part of the NIJ team. The stage is yours.

JANINE ZWEIG: Thank you, Nancy. And I'm just going to briefly introduce this plenary, which is an important one. And so, thank you for hanging in and joining us this morning. This plenary addresses ways that science can enhance equity in the criminal justice system. And in this case, the focus is on medical forensic evidence collection. It's a critically important topic, and one of Director La Vigne's major priorities in her agenda, applying a racial equity lens to our work. It's also closely aligned with my portfolio that Nancy just mentioned, having studied responses to sexual violence and victimization for many years in my career. I'm delighted to introduce this impressive panel of experts who've convened this morning to share their thoughts and insights on this. First is Carrie Johnson, who really doesn't need an introduction at all, but I will quickly say Carrie is National Public Radio's justice correspondent and has been doing that work for over 10 years. Before NPR, she was a journalist for the Washington Post. She's received several awards, too many to mention in this moment because we're trying to get to the focus of the plenary, but over her storied career. And at this time, I'd like to invite Carrie and the other esteemed panelists to please join the stage. Thank you.

CARRIE JOHNSON: Thank you so much, Janine. It's such a pleasure. And, Nancy, it's such a pleasure to be here to talk about these important issues with this really esteemed panel. We have about a little over an hour. We're going to leave 15 or 20 minutes for audience questions, so please do keep your questions in mind. Somebody will come around with a microphone or I see some microphones stationed in the middle of the ballroom here. It's my great pleasure to be here today, as I mentioned. And I'm going to ask each of the panelists to introduce themselves in turn, starting with Dr. Katherine Scafide, whom I met in doing a story about this very research topic for NPR. I'm hoping you can introduce yourself, Dr. Scafide, but also share a little bit about your background and what in your background led you to ask these kinds of questions in your research.

DR. KATHERINE SCAFIDE: It's a pleasure to be here today. I am an Associate Professor at George Mason, but prior to getting involved in academia and research, I was a forensic nurse and I practiced for eight years, specifically working with survivors of sexual assault and intimate partner violence across lifespan. And for a short period of time, I was a death investigator for the state of Maryland. Loved that job. But one of the things that became very apparent to me in that practice, and I'm thrilled that we have another clinician here who can definitely echo some of the same sentiments I've experienced was how important injuries are in the story that they can tell. And it's our responsibility as clinicians to capture that story through the documentation and the assessment that we do. But one of the major challenges that I noticed as I was practicing is the difficulty it was to detect and document and assess injuries on victims of violence who have dark skin pigmentation.

And I always recall, and I tell this story time and again, but this one particular patient that I had who was experienced sexual assault and reported to me that she had been bitten on her back, and I will remember this story forever. She had a very, very dark complexion. And I looked and I looked, I actually stood on a step stool using different lights. I had, you know, the overhead lighting, task lighting. I grabbed a flashlight. I was trying to do oblique lighting. I looked and looked and looked, and I could see nothing because her skin tone was so dark. And I was so disappointed, but more importantly, she was so disappointed. I could see that on her face that she was hoping that I could capture the particular injury that she experienced. Now, of course, I swabbed, you know, for DNA and I documented her history, what she reported, but there are no pictures. There was nothing to take a picture of. And there was nothing for me to document in the narrative on the body maps as to what I was seeing. And that look of disappointment will always be something I remember. And so that really did spark my interest, not just in trying to overcome these disparities in how we assess and document injuries on victims of violence, but looking more towards tools that we could use, particularly in the area of technology.

The Department of Justice in its publication of the national protocol for doing medical forensic exams for sexual assault had suggested using an alternate light source would improve that. But at the time, there really wasn't a lot of rigorous research that was there to support it, which in terms of the legal setting, we need research evidence to support its use. With NIJ's support, I was able to conduct a large rigorous study to examine specifically whether or not alternate light source could detect bruises or enhance the visibility of bruises on diverse skin tones. And we were very successful of that. And being able to identify specific wavelengths on different skin tones that would improve the detection up to five times greater than white light with a probability of detection of 90%. That's been a huge success, I think, in advancing how we do clinical practice.

CARRIE JOHNSON: We're going to come back a little bit later to some of the more colorful aspects of your research methodology, because you're not going to believe this if you don't already know. But I do want to move on to Chantel Hammond. Can you please introduce yourself and share a little bit about how you come to this topic and how you deal with these issues every single day in your life and in your job?

CHANTEL HAMMOND: Of course, yes. I'm Chantel Hammond. I'm a Forensic Nurse Specialist at the International Association of Forensic Nurses. That's a professional organization for forensic nurses, but then also we work along with partners and other multidisciplinary team members, all to serve victims of all types of violence. So how I started with this particular topic, and it's a blessing and honor to be up here, is I used to run a community-based forensic nursing program in which we cared for a diverse number of patients for sexual intimate partner violence. And also, while I helped run that program, I was in graduate school getting my forensic nursing degree. That sounds like a lot. I promise you it was worth it because my graduate project was on injury identification, specifically how forensic nursing science can advance to better care for patients of color. That project led to me improving my practice, but then also educating other nurses on how to make the medical forensic exam more equitable, specifically taking it and dialing it back.

We want to look at injuries, but we also have to think about how we approach our patients, and so thinking about color blindness versus color awareness. Color blindness is I treat all my patients the same. I'm going to do everything the same because that's fair. Color awareness is saying, "Okay, everyone’s different.” And to make sure that I am treating patients the way that they need to in an individualized trauma informed way, I have to recognize and celebrate our differences, right? For example, injuries do not present the same across all skin tones. As forensic nurses, our job is to prevent infection, alleviate pain, promote healing by injury identification. If we can't do that, that's a huge problem. The issue is a lot of the assessment techniques and methodologies that were created to help us assess our patients were built for lighter pigmented or white skin. So, I love the fact that Dr. Scafide did this research because it's a piece of a puzzle. Like when I was getting deep into the literature, I couldn't really find anything. But to be able to have that critical piece of, "Okay. There is a tool that we can use to make it easier for us to assess our patients."

CARRIE JOHNSON: State's Attorney Kim Foxx, I'm hoping you can introduce yourself and also talk a little bit about the historic nature of your role. But the final piece of this puzzle here is, how this kind of research can be used in court and how the lack of it may have inhibited investigations and prosecutions over time, some very important investigations and prosecutions over time?

KIMBERLY FOXX: Absolutely. Thank you for having me. I am not a researcher or a doctor. I am a lawyer. I'm the Cook County State's Attorney. I'm the Chief Prosecutor in the second largest prosecutor's office in the country in Cook County, which encompasses Chicago and 132 other municipalities around it. I was elected in 2016 in what was a historic election, becoming the first African-American woman to serve in the role, the first African-American to be elected to this role. And it was a historic time in the city of Chicago and Cook County in the wake of a murder of a 17-year-old boy named Laquan McDonald. And a real push for the criminal justice system to be responsive to the needs of communities that are impacted by violence, both violence that happens in communities and state violence.

And my election was really centered on looking at the criminal justice system, and particularly the role of prosecutors with the racial equity lens acknowledging that our criminal justice system had a profound, at least in Cook County I can say specifically, sense of disparity of how people of color interacted with the justice system. And where it intersects with this conversation, it's not just those who have been victims of state-sponsored violence or those who have been defendants, but also victims. And what continues to feel like a credibility and legitimacy gap in how we treat those who come into our systems. A lot of the conversation we talk about in this realm of civil rights and civil liberties, for those who have been accused, what we need and have to talk about more are those who are the victims of violent crime, intimate partner violence, and others who my office may not ever see.

The number of people who come into the criminal justice system is just a small fraction of those who have actually been harmed. And I think we need to recognize that, so that even though in Cook County we see somewhere around 40,000 felony cases a year, maybe 100,000 misdemeanor cases. That is just a fraction of those who have been impacted by some harm within community. And when you talk to folks who have not come into the system, some of them have come and have come and been in medical situations just like Dr. Scafide described, have made the report, have gone through the vulnerable position of presenting themselves to medical professionals, to forensic investigators. And on top of the harm that's already happened and having to expose themselves to others and only to be told as Dr. Scafide said, "I don't see it." And those are the people who have made the call. And then there are others who won't even make the call, who won't even do the reporting because they believe the institutions that are here to provide justice don't see them. And the credibility and legitimacy of the institution or the lack thereof stops so many people from coming forward. And so, this work is incredibly important, because again, when I talk about Cook County, it's important to frame for you who I see in our work.

Cook County is a largely diverse county. It's the second largest county in the country, second to LA. We are racially divided rather evenly about a third African-American, a third Latino, a third White. But our criminal justice system does not skew that way of those who are defendants in our criminal justice system, 77% are Black males, followed by about 15% Latino, and less than 10% White. When we look at victims of violent crime in Cook County, the overwhelming majority about 70% of victims of violent crime are Black male. When we look at issues of intimate partner violence where it skews in cases that actually come into the system for prosecution, one would think given the numbers that I just described to you that they would be somewhat similar, and they are not. What we know is that intimate partner violence or sexual and in addition to sexual assault and sexual violence is one of the most under reported crimes that we see as prosecutors. So, you have, again, a significantly smaller number. And then when we see those who are presented for prosecution, the racial disparities are significant. We see a higher proportionality of White victims whose cases are presented for prosecution than we do Black victims. And again, I am not a researcher or a scientist, I leave that to all of you. But statistically, it should not bear out that way.

And so, what we recognize is that there are barriers. Again, legitimacy and credibility barriers on the outside, and then the institutional barriers that we see in the preparation for these cases often time that happens in the evidence-gathering stage because it's critically important. Proving these cases as a prosecutor, we rely on our victims to tell us what happened. But we have an incredibly high burden once we get into a courtroom to prove someone guilty beyond a reasonable doubt. And oftentimes, the word of a victim is not sufficient. We will do everything within our power to build a case using evidence surrounding that. But in court, some of the most powerful evidence is forensic evidence. It is the most powerful evidence. It is what sometimes we call uncontroverted. So, if you're talking about someone who says that "I was bitten," to be able to have the bite mark evidence, to be able to have it presented. "I immediately went to the doctor, and they took a picture immediately so you should see it" is really powerful. Such like with Dr. Scafide's example that if someone says, "I did and I went," the flipside of that is a defense attorney who will say, "There was nothing there, she made it up." And so, this recognition that these disparities exist in our system and in interrogation of each and every barrier point including at the forensic sciences level is critically important.

DR. KATHERINE SCAFIDE: Can I interject something?

CARRIE JOHNSON: Of course.

DR. KATHERINE SCAFIDE: There is research that takes it even a step further that the severity of the injuries is not appreciated on people with dark skin. You could have the same injury on somebody with light skin and dark skin made by the same way, but it just doesn't look as severe, as painful on somebody who has a dark complexion. And then you don't get the charges that might be warranted. Strangulation for sure is a major issue.

CARRIE JOHNSON: Absolutely. Dr. Scafide, explain to us how you designed your study and how you designed it to be rigorous enough to overcome some of the doubts that have surfaced about forensic science since the National Academies of Science report a few years ago, which landed like a ton of bricks. And then I want to follow up with you on that but start there.

DR. KATHERINE SCAFIDE: Sure. Like I said, prior research in this area was pretty minimal and pretty much dealing with all Caucasian populations. And I think we've already established that that's a problem. It was a multi-site study. It was a partnership I did with Texas A&M University. A randomized controlled, crossover study. So, in terms of standards, that's as good as you can get it. And we assured we had diversity in our sample. So, we used a quota sampling method, but focused on measuring skin tone using a spectrometer. So much more objective measures to make sure we had a diverse sample. And really the most diverse sample in terms of bruised dataset that I believe that there is. I haven't been able to find another one. And so, through that method, we were able to assure diversity, and rigor, and then we had to know exactly how old these injuries are. And so, in order to know exactly how old an injury is, you have to create that injury. So, I have a title, an official title known as “the Paintball Lady.” And so, it's a very effective way of making bruises, superficial bruises, but we also created deeper bruises using a dropped weight as well. I am very well-versed in research ethics.

KIMBERLY FOXX: Who signs up for this?

DR. KATHERINE SCAFIDE: I had a line out the door, and believe it or not, mostly women.

CHANTEL HAMMOND: Oh.

KIMBERLY FOXX: Bless it.

DR. KATHERINE SCAFIDE: Of course, compensation is helpful too.

CARRIE JOHNSON: Yes.

DR. KATHERINE SCAFIDE: I think people recognize the importance of it as well and what we were trying to do. Using all these methods to try to control for as much bias as we could, in a manner that would give us the most information to help really solidify which wavelengths work the best for which skin tones and really deal with bruise age as well. That was really key.

CARRIE JOHNSON:Important stuff. Chantel, you are versed in standards and want to practice the best science and the best operational work you can. How do you take this research back to work with you and how do you communicate it to others who need to know?

CHANTEL HAMMOND: Yeah, that's a great question, Carrie, actually. The great thing about working at the International Association of Forensic Nursing is that we disseminate a lot of knowledge. We actually have a webinar coming up in August talking about injury identification, evidence collection across skin tones. It's coming from a cultural standpoint, thinking about some of those cultural competencies, cultural intelligence, but then also that's a great place to talk about this research and saying, "Here's a tool that we can use."

The only thing that I kind of have a drawback to is they did a study on sustainability for forensic nursing programs, and when they went to go visit those programs, they looked in the closet and then they saw all these really expensive equipment and it wasn't being used. So, we know that the equipment is only as good as the practitioner who uses it. And, Dr. Scafide, you talked about how you're going to have those clinical guidelines to come out, which is very important, because we have to be able to pair that practitioner and that equipment and make sure that the practitioner is ready to use it and understand it but then also understand if I don't have this equipment, then what do I do? How can I still make sure that I am assessing my patients in a way that we don't have that patient who has an injury, and we can't see it? What other ways can we assess our patients, whether that's, “Okay, I didn't see an injury today but we're going to do a follow-up in three days and see if anything changes” and using other things such as palpation and touching, feeling for warmness, other ways that we can see how the skin injures in darker pigmented patients.

CARRIE JOHNSON: Attorney Kim Foxx, Dr. Scafide, how do you deliver this message other people who need to know? People like police and prosecutors. And do you think there's an open mind about some of this stuff? Have you heard about it?

KIMBERLY FOXX: Go on.

DR. KATHERINE SCAFIDE: I definitely think there's a lot of interest. I think law enforcement and clinicians recognize the fact that there are inequities in terms of what we do and the potential effect it can have, as Ms. Foxx was talking about, in terms of the legal outcomes. And we need to prioritize choosing techniques that obviously, have the research evidence to support them but can help address some of these issues. And so, disseminating, doing trainings. I had been fortunate to do one with FTCOE. Being here today really helps.

CARRIE JOHNSON: Yeah. Yeah.

DR. KATHERINE SCAFIDE: It really helps.

KIMBERLY FOXX: Yeah, I think law enforcement is having to evolve constantly. And I think evidence-gathering techniques and the science changes rapidly. And what I will say though is law enforcement tends to be on the backend of those scientific changes, right?

CARRIE JOHNSON: Yeah, yeah, yeah.

KIMBERLY FOXX: And we will see now a lot of things of the way that we collected evidence or, going back to the issues of bites, right? There was bite mark science from years ago that we are now seeing has been dispelled.

CARRIE JOHNSON: Deeply problematic. Yeah. Yeah.

KIMBERLY FOXX: Yes. Deeply problematic.

CARRIE JOHNSON: Yeah. Yeah.

KIMBERLY FOXX: And so, there is a hesitancy, I think, when we start to hear and learn about new methodologies and techniques from an area in law enforcement where it's not our bread and butter, right? And so, a lot of these issues are like litigated out. There's the Frye test, there's this, and what is the legitimacy of the science that we're trying to interrogate here? And so that will always exist. I think though this question of looking at our work and all of our work through a racial equity lens should dominate even where we get to the conversations about the rigors of the scientific evaluation process, because, as I said in my earlier remarks, we know that there are disparities within the system as it already exists. We know that, again, when we look at those people who are coming through our system, that they are not being treated fairly. Without having to have a scientific background, it just doesn't measure up. And so, I think what we're seeing in law enforcement, some very eagerly and willingly and some where it is being forced upon the profession in the wake of high-profile cases like the murder of George Floyd and others and this real push for a recognition of the deeply problematic history of law enforcement around race to start to do those interrogations.

And I think you're starting to see a lot of places, law enforcement settings where the table is being set, not just with activists and advocates but researchers and academics and a welcoming of research and academic into the process. You hear a lot more conversations, I know particularly in prosecutor's offices, around being data-driven, about being research-driven, about taking a historical look at the practices that we've had to see if in fact it's advancing the course of justice, and that's starting to bubble up more.

But I think these conversations, particularly about racial equity are very uncomfortable for a lot of people. If you know anything about me, I'll be very diplomatic first and then I'll get to the gritty. There’re some people who just don't want to hear it, that that racial blindness feels right, right? That there shouldn't be these levels of care that differentiate along racial lines, but I sit here as the non-doctor, non-researcher or professional on here, and I hear about the conversations that we're having nationally around maternal mortality rates and this real conversation that we are seeing that Black women are dying at three times the rate of White women while giving childbirth and the interrogation of how did we get here? And I've been at panels who are listening to doctors who talk about pain thresholds that seem to be different among Black women than they were among White. Like this is across spectrums. This is across discipline. This is across every aspect of what we do. And to run away from the conversation, even if we don't know how to get to the interrogation of it but to run away from existence of the racial disparities will only keep us further from the tools and the technology that will allow us to have the system that we aspire to, which is justice for all. And right now, it is truly aspirational because we don't significantly or sufficiently have the tools to address the needs of those who need us most.

CHANTEL HAMMOND: May I interject? So, the amount in which injury is identified in women of color versus White women directly mirrors what Ms. Foxx said in terms of who is actually getting their case prosecuted. White women are more likely to have their injuries identified as opposed to Black women. And I will never forget a case that I had. It was a patient of color who experienced nonfatal strangulation, so that's strangulation in which you did not die from. And she had a very prevalent bruise on her neck. She didn't have darker skin. She had a fair skin tone. So, you could see the bruise just looking at her. The EMS picked her up. They didn't recognize the bruise. She went to the ER. They didn't recognize the bruise. She went to another discipline. Law enforcement actually stated it was a blemish. And so here I am with my experience as a medical forensic examiner. I take pictures. I measure it. We actually do get to court and it's my word against everyone else who either didn't recognize it or said it was a blemish. So, what do we do there?

KIMBERLY FOXX: That's right. That's right. And, again, why having the conversation and even introducing it when we're having these hearings about the legitimacy of the work, asking the question, what has this been tested against darker pigmented populations? What has been the research? Again, training our prosecutors when we're doing this. What does that look like? Because historically, again, we know that a lot of these methodologies use populations of one sort, right, and we're different. And even training and teaching our lawyers as we're doing this, because, again, science that has been widely accepted. Well, we'll say, "Well, this has been widely accepted. This is what it is." And there's a reluctance, even for us as prosecutors, to challenge that, right? We recognize that it is an intimidating proposition to be a lawyer trying to interrogate. I'm intimidated right now sitting on this panel to question and interrogate, but we have to. And I think really recognizing again, the numbers just don't add up. And that as prosecutors, we can't simply just accept what comes to us as, well, this is just the way it is. And I think, historically, we have done that because that's all we knew. And so having really the opportunity to have research that is being done on different populations that are bringing this into the forefront and bringing us to the table to say, "This is how we're changing in methodology. Have you used this type of light?" Like for us to even know that that exists to be able to interrogate is currently important.

DR. KATHERINE SCAFIDE: To build off of what both of you guys were suggesting in terms of clinician access or understanding the technology and law enforcement's understanding of what's available is really a critical next step because, yes, this research is great but how does it translate into what we do in terms of practice, and who should be using it. Should law enforcement be using it? Should clinicians be using it? And that is an essential next step. I'm fortunate that I've been able to work with NIJ, again, in terms of funding and be able to devote my time to a project where we are developing clinical practice guidelines for how to implement this in the practice. And it's not just the step-by-step process but also involves training, documentation. The training, it also suggests including law enforcement and prosecutors and judges to make sure they are informed of this practice, its limitations, the research evidence that supports it. So, I'm looking forward to those guidelines being available. We're going to be presenting them in September. Side plug for IFN, their conference. But then we're going to make them publicly available because that's the essential next step getting back to your dissemination suggestion.

CARRIE JOHNSON: Sure. And just following up on that, I did a story on this research with you earlier this year that ran on Morning Edition from NPR. And I got an email from an advocate for a survivor of domestic violence who said a judge in Georgia hearing her case heard that story and mentioned it from the bench. So, I think there is interest and there is, at least, some receptivity to actors, important actors in the justice system to hearing some of this research. But there are barriers to overcome too. What about those barriers? You've referenced this a little.

CHANTEL HAMMOND: Yeah, I think there are a lot of barriers. From the practitioner side, like I said, we often jump to how do we identify this injury without thinking about the initial contact with that patient? How do we interact with someone that's different than us so we can get to that intimate, very sensitive part of the exam? I can't tell you how often I've interacted with patients, you could see the sigh of relief on their face when they saw that I was their practitioner because that's one less barrier that they have to overcome. We're talking about women, men, people from all genders who have been traumatized either by sexual or intimate partner violence or whatever type of violence, who also have to deal with things such as racial trauma. And so, I already have a patient who's heightened, who's nervous about entering the medical system because, "I've come to a doctor or a nurse before and they didn't hear me. They didn't recognize me. I'm already traumatized from this assault. Now what?" So, it's very important to think about the tools and the clinical guidelines that we're going to use but then also making sure that we take a moment to think about how are we really going to address our patients? How are we going to talk and interact with someone who is different than I so we can get to that point of that we're assessing them?

CARRIE JOHNSON: Other barriers? Other thoughts about barriers?

KIMBERLY FOXX: You know, like I said, I couldn't agree more with Chantel even talking about the criminal justice system, not even the medical piece, that people are reluctant to engage at all. The legitimacy piece matters. And, again, I think the barrier that we have is just this acceptance of what is given to us without interrogation. That if that report comes and we are not as educated or we don't know and it says no bruising, we just accept that, right? And so that is a real challenge for us because, again, when you have large dockets, you may not have the ability to sit and talk to that survivor in that moment and all you have is a packet and your familiarity with the medical science, you know just enough. Do I know enough of the lingo to make me go forward? And sometimes that is as sufficient as no injuries documented. So, when you talk about the body chart that's on there and there's nothing circled on the body, your instinct is to say, "I'm not going to be able to prove that." Bringing the humanity to this of like, “Well, what else can I do? What else should I be looking for?” That it's not just a, “Well, case closed because there's nothing circled on this body.” There's an individual here. There's a person here. I think those —have been the historic barriers. Again, when we talk about volume and size and we talk about the populations that we serve, there has been, I think, a systemic dismissal of the experience, particularly if we're talking about intimate partner violence, women of color. It's baked into the system that doesn't allow for us to do that interrogation. And so, I think that is a significant barrier, one acknowledging the systemic piece of it because individuals like Chantel, she can't be in every room.

CARRIE JOHNSON: Of course. Of course.

KIMBERLY FOXX: She can't.

CHANTEL HAMMOND: And might I add that you did mention that if there is something saying that no injuries was noted then you think, "Well, how can I prosecute this case? I do want to say that the whole medical record is evidence. It can be used for evidence.

KIMBERLY FOXX: That's right. That's right.

CHANTEL HAMMOND: So, if you don't see injuries noted in your medical record, think about other things. Think about the signs and symptoms that that practitioner put down or anything like the patient's demeanor or the history of the assault, because we do have hearsay of...

KIMBERLY FOXX: Exception.

CHANTEL HAMMOND: ...exception because we can, as practitioners, speak to that patient and speak to all the other things outside of just that injury that we noticed.

KIMBERLY FOXX: Thank you.

DR. KATHERINE SCAFIDE: I'd love to speak to a different barrier which is access and the technology. To get into the technology piece, the technology is not cheap.

CARRIE JOHNSON: Right.

DR. KATHERINE SCAFIDE: The alternate light sources, if you guys are familiar with them, they can range the gamut of a good quality one between $2,000 and $10,000, you know? And for a forensic unit who doesn't have a lot of funding, that's really expensive. And so there needs to be more investment in terms of making the technology more affordable and more accessible. I have another NIJ-funded project right now that is looking at using digital images and deep machine learning to see what we can do in terms of being able to make this technology more accessible to somebody who has a cellphone and who can take a picture. What can we do to get the technology in more rural areas, even internationally into other countries that really are experiencing a lot of violence and need this kind of technology. So there needs to be the investment also in terms the barrier of the technology piece.

CARRIE JOHNSON: Yeah. You mentioned your clinical guidelines coming in September, which will be an important advancement, but you now have a body of data from this remarkable paintball/weight research that you could use to ask other questions. Where is your mind leading you now that you have all the time in the world to develop new hypotheses but...

DR. KATHERINE SCAFIDE: Ooh. There are so many different ways. We're using technology, using the deep machine learning, which I will tell you, I know nothing about. That's why you got to have a team of experts and let them handle the machine learning piece of it. But in terms of image analysis, we're really looking to see if we could look at understanding or predicting bruise age I'm sure Ms. Foxx and Ms. Hammond, you guys both can recognize the importance of being able to understand if you can figure out in some sort of error or window how old an injury is would be huge in terms of the cases that are brought forward. But again, using rigorous science and taking advantage of the data that was collected in these projects.

CARRIE JOHNSON: That's so important because when I was talking to people from the Innocence Project of New York about this whole area of research. What they wanted to see to have more comfort with respect to this technology's use in court is more information about age detection. Really rigorous information because, forgive me, there have been quacks over the last 50 years who have talked about UV light as a revolutionary thing, and it has become a very dangerous thing when it's been used in court.

DR. KATHERINE SCAFIDE: Oh, it's very dangerous. First of all, I never use UV light for this purpose at all, because it doesn't work on anybody who has any kind of skin pigmentation.

CARRIE JOHNSON: And yet...

DR. KATHERINE SCAFIDE: Yeah, people do it.

CARRIE JOHNSON: ...people appeared in court confidently testifying that.

DR. KATHERINE SCAFIDE: And people testify to how old a bruise is just by looking at it with no information, no science. There's no science behind it. Unless you're able to do histological samplings, there's nothing out there that you can support that opinion.

CARRIE JOHNSON: How important was it do you really think to have had those experiences early in your career where you just felt... I don't want to ascribe an emotion to you, but it was kind of a powerless, frustrating experience.

DR. KATHERINE SCAFIDE: It is. I mean, clinicians all the time, we feel very frustrated when we can't provide the best possible cure for our patients and recognizing the challenges, because we know the challenges they're going to experience in working with prosecutors and seeing the outcome. So, it was inspiring, as is most clinical problems are what inspire research. Everyone should take with that working together between clinicians and researchers, it's really essential to be able to make sure, as researchers, we address those important clinical questions that are being posed.

CHANTEL HAMMOND: Yeah. I agree. The frustration is still there because there is still not a lot of research out there. We have one very important aspect of different injuries, which is bruising is very common in assault cases. But then we also have other things such as abrasions and then redness. Everybody doesn't turn red, but it's used to say, "Okay, this person has inflammation or there's something going on, maybe an infection." Everyone doesn't turn red. And we can look at other disciplines such as dermatology and those that study pressure ulcers actually because they have gone a long way in looking at skin pigmentation and thinking sometimes darker skin turns darker instead of red. But we look at that and say, "Oh, that's just hyperpigmentation. That's normal." Well, how do we know that it's normal? We all, across all skin tones, can have hyperpigmentation, yes. But sometimes in darker-skinned patients, that hyperpigmentation could be abnormal. And so, are we following up with that patient or we're just saying that that's normal? So, I think there really needs to be more research on, in terms of injuries, what's normal versus abnormal across the skin tones.

DR. KATHERINE SCAFIDE: That's a great point.

CARRIE JOHNSON: Yeah. And using that whole body of science from dermatology is, -what you just referenced, sounds really critical. Use what we already know.

CHANTEL HAMMOND: Yeah. I agree.

CHANTEL HAMMOND: Yeah. What we already know. And using other disciplines. Sometimes we get so siloed in the forensic world and say, "Okay, what do we have here," but let's look at what else is out there and maybe we can collaborate and work together to serve patients because, really, everyone interacts with someone who is a victim of violence in some way or form, whether you're a nurse, an ER physician, a trauma physician, a prosecutor, or law enforcement. So really using all of our lovely minds to work together on how we can really address these critical issues.

CARRIE JOHNSON: I'm so honored to be up here with all these brilliant women this day in particular. We're going to open this up for audience questions. If you have a question, I think there's a mic right there. There may be somebody coming around. Oh, there's somebody coming around right now. So, raise your hands. And before we get to an audience question, let me ask just this last one. I'm so glad you mentioned the anniversary of George Floyd's death, which is today.

KIMBERLY FOXX: Today.

CARRIE JOHNSON: It's quite meaningful to be having this conversation on this day and talking about research and the justice system and how to make it more equitable.

FEMALE: Good morning. Thank you very much. This has been very informative. My question has to do with the challenge of translating a new technology into something that's accepted by the courts. Because you can come up with something that actually works and so I'm convinced, for example, that there would probably be a technique that can be universally used so that bruising, for example, can be better visualized across all skin tones if there's science out there that probably can lead to that. But what I've noted as a researcher is that it can be very, very difficult since the court system tends to rely on tried-and-true technologies to rise over that hump of getting it accepted into the court system so that it can be used to solve crimes. I'm wondering if any of you can comment on ways in which we can overcome that burden.

KIMBERLY FOXX: Yeah, it is a burden because we recognize, as it was just noted earlier, there's also been a lot of quack science that has been developed over time that has not been rigorously tested. And once you do the testing, it is dispelled and we've seen, an awkward plug for Cook County, we've led the country for the last five years in the vacating of wrongful convictions. And we've seen a number of wrongful convictions across the country that had been based on flawed science. And so, the test that we talk about, the Frye test in accordance with, has this been evaluated? What is its acceptance in the broader scientific community? And so, part of that is that it takes time. So, the technology being developed now today and the equipment and the like, the testing of that, the use of that, the study of that, has it been published, has it been interrogated? It takes a while to catch up with the courts.

We've seen on the defense side, which is opposite where I sit, where they will introduce someone to come and challenge that or say there's this other science, there's this other work that is being done. But again, for a kind of universal approach to it, it does take time as it should. We need to rigorously evaluate the validity of what we're talking about. It's the really unfortunate aspect of innovation as it occurs, catching up to a practice that really needs that innovation to be tested. And so, what I would say to you is, don't be discouraged if you have what you believe to be breakthroughs in science that allows for that additional help to continue to have it evaluated, to continue to have it published, to continue to do all of the things that are necessary. Just know that that first time that it does appear in a courtroom, there will be an opportunity to have it torn apart. The more that it's accepted by the courts, the more that it goes through that process, that it is validated. But it takes time.

CHANTEL HAMMOND: And I also would say, make sure that you're working with the practitioners who are going to be using that research. Because we're the ones who are sitting in that courtroom having to defend the science and defend the methodologies that you create. And so having that close relationship with clinicians and researchers is very important as well.

DR. KATHERINE SCAFIDE: Part of the inspiration for this project was the Frye hearings that were occurring as challenges to this technology. At the time, there wasn't a lot of rigorous research. And so there needs to be a body of research that can really support the argument for why it needs to occur. And everyone hates to be that first person, that first case to challenge to introduce the technology. But like Ms. Foxx was saying is, it takes time and the clinical practice guidelines we have developed have a whole testimony section that's been reviewed by multiple prosecutors to try to prepare the users to be able to recognize these challenges that are going to happen, and how best to attack them. Attack was probably not the right word to address them.

MALE: Thank you for the amazing presentation. It's been quite eye-opening to me. We all understand the value of diversity in the workforce, and I think no one in this room is going to challenge this notion that we need to diversify the medical field, the criminal justice field. But from your own perspective, what can we do to support the individuals that we hire into the prosecutorial office or the hospital, so they don't succumb to institutional pressures and adopt the behavior that we're trying to change, this whole idea of the colorblindness that has dominated the prosecutorial field that we are so familiar with? Thank you.

CHANTEL HAMMOND: Yeah, actually there is a study that just came out that--I think it was out in Maryland, about how 50% of the patients that they see were patients of color, yet the same nurses who were seeing them were not very diverse. A lot of people when they're hiring, and I could speak for the medical field, they want to get at the entry level a lot of diversity, but not at the leadership level. So, if you want to support your new hires, you have to have diversity in the leadership as well because they are the ones who are creating these policies and procedures. And so not just on the ground level, but the leadership level as well.

KIMBERLY FOXX: So, I think you lobbed that at me. As I said, I'm the first Black person elected to this role in Cook County, which is a very diverse county. It is also not enough that I am there, and we have a very diverse staff that we have to say that we have to look at things through a racial equity lens. We have to call a thing a thing. And I think it is really difficult, these are difficult conversations outside of like a moment, right? Outside of an event has happened and there's like a rallying cry of, "This is wrong." And not the actual interrogation of the systems for which we operate. So even using words like "structural or systemic racism" in the criminal justice system or criminal legal system, is foreign.

And I will tell you, just by way of background, you know, there are about 2,400 elected prosecutors across the country. About 2,400. When I was elected in 2016, 79% of them were White men. Seventy-nine percent. And this is according to Women Donors Network. Sixteen percent were White women, f4% were men of color, and less than 1% were women of color. So, the field itself of prosecution is largely a White field. Now when I say that the discomfort isn't that people who are not people of color can't operate around these issues of racial equity, but we've never had to. We've kind of accepted that the overrepresentation of people of color in our criminal legal system is because those people commit more crimes, or those people aren't picking up the phone and making those calls. Like we've accepted this, like, anecdotal analysis of why we have these overrepresentations, instead of doing what this is panel is about, is a real interrogation of, "What are the barriers? How is that so? How is it that we have populations who would seemingly experience the same life events," right? We know that women across the spectrum may be the subject of intimate partner violence. Why are we only seeing it here? Or we know that people use drugs across the same lines. Why are we only seeing people of color arrested and charged and prosecuted for drugs? That level of interrogation requires us to start with the premise that what we have is wrong. But if you have been the beneficiary of a system that has not worked against you, that interrogation doesn't happen. And so, the way that we've done it in our office, and you say, "How do we support it?"

One, I think you have to have institutional bravery to interrogate yourself and your role into the process. And then you have to put in the supports to say the work that we've done with FIU and Loyola around racial disparities, around how do we measure this work to help that it's not just, "You're trying to make me feel bad," right? And in having these conversations, particularly around racial justice issues, these are not just like feel-good social justice issues. These are matters of the credibility of our institutions. And I think if you establish it in that manner, that this isn't about taglines and slogans, and who's awake and who's asleep and wokeness and that. But it is about a system that has really been entrenched with science that has not been inclusive of everyone, that has not been interrogated for outcomes that are vastly different, and that there's a responsibility on the people who wield power to do something about it, then you will just continue to perpetuate a system that you know is flawed.

And so, the way that we support our folks is not just having diversity hires., I was a 12-year prosecutor in my office, and I was trained in some of these same things that didn't feel right to me, but that's what I thought was right. And so, it's not even just having diversity, it really is having academics and researchers and others to have a basis for which we can challenge the practices that we do and put forward solutions that are evidence-based that have been interrogated. But that's where it has to start. Like diversity absolutely up and down the organization helps, but in actual intentional commitment to addressing racial disparities in your system and not believing that they simply exist, because that is the nature of what we do, but perhaps there is because of the ignorance and the unwillingness to address them in a way that will get us to a different outcome.

DR. KATHERINE SCAFIDE: I love that institutional bravery. I love that term. I love that.

FEMALE: Once you have this institutional commitment to understanding disparities and understanding the historical legacies that create those disparities, what happens in these places where there is political, forceful erasure and suppression of these discussions? So how can I go into my classroom and talk about this when the legislature is trying to eliminate tenure and suppress academic freedom? Judges can be recalled; prosecutors can be taken out of office by governors if things aren't going the way that is politically in the same direction. So, what can we do when we feel powerless in our positions as academics, as professors, as scholars, and as people who are harmed by the system?

DR. KATHERINE SCAFIDE: Wow. There's a lot to unpack with that. And I feel obligated to speak up 'cause I'm the academic. You stumped me with the tenure piece. That's what got me thinking. It's unfortunate because in order to be able to feel like we have academic freedom to impart such important lessons on our students and also disseminate to the public through publications and presentations, we need that protection, so to be able to feel that we can still continue to pursue the ideals that are so important to the work that we do. Feel free to jump in, anybody else who wants to answer the question.

KIMBERLY FOXX: Yeah. You know, I'm elected, right? And so that pressure is different. But I also, to your point, I've seen prosecutors across the country, Andrew Warren for example, in Tampa, in Florida, who was stripped by the governor there of his role. And we've seen prosecutor override bills across the country including in Illinois that didn't go anywhere. That is really trying to strip prosecutors from their power for addressing these very issues. What I would say is, as an elected official, my job is in the hands of the people. It has not been a very easy job. If you left here and googled me, you would find quite a number of articles about the difficult road that I've had to tow in doing this. But it has been worth it because I've been unapologetic about the fact that we have these racial disparities and there's something that we must do about it. But I think it is an institutional bravery that is required.

I think the goal of this is suppression. The goal of this is to stop having these conversations by framing it as this other thing. This is the part where it might give Nancy a Little heartburn, but America is nothing if not consistent. We are nothing if not consistent. And so, the history that we have had in this country around issues with race, we abolished slavery, and we have reconstruction, and then we have the era of Jim Crow, and then we have the era where there's a complete diminishment of civil rights. Since 1964, we will find ways to make things correct back to where they have been. I am just of the position that when I look at the history of this country, that people will say, "What would I have done then?" We are in the "Then." We are in the moment that there will be generations that are looking back at this time where we are banning books and where we are, like, suppressing educators from fully teaching. And the question will be, "Where were you then?" I wholeheartedly believe every time I come to DC, I think there were probably 9 million people on the march on Washington, there weren't. But when you talk to the elders, they were like, "I was there too." You were not. You were not on the Freedom rides. We know those numbers. We know who those people who were on those rides, who were on the freedom rides, who were at the counters, who were doing this work, it took small and mighty to move.

I think it is a very challenging and fearful time right now in all of our institutions, but without the institutional bravery, and I understand tenure, and I understand that that's how you do it. But I think there has been so much of preservation of oneself and we try to do that, that too many preservationists here allow for those who are unapologetic in their wish to be authoritarian. They're not hedging, they're not like, "Is this too much? More?" Right? There's a challenge of who can out-authoritarian the other. And I find that for those of us who are believers of civil rights and civil liberties, that we, in this era, have been not holding to the same of our foremothers and fathers to say, "I might be taken out." I don't want to be taken out physically, I mean taken out of the game. But then there's someone else watching. And so, I don't have an easy answer. It might mean losing your job and it might be worth it.

CARRIE JOHNSON: Such important conversations to have. Thank you so much to this brilliant panel for all of your time and insights. Thank you to the audience for listening.

NANCY LA VIGNE: Those of you who know me well know that I am the ultimate strategist, and yet, I had not anticipated that this would be the note that we end the conference on. Now we do have other breakout panels, but this is the last time you'll be hearing from me. I was intending to reference the anniversary of the killing of George Floyd by a police officer. Yesterday I honored the anniversary of the school shooting at Uvalde. Ms. Foxx talked about the responsibility of the people who wield power to make change. And I don't know if you met it or not, but we in this room have that power too. Science is power. We have to use it carefully. We have to make sure it's rigorous. We can't assume that it's right based on data that we haven't interrogated to ensure that it's measuring what we think it is or not mismeasuring in ways that also insert bias. But we all have a very important responsibility to take up this torch. I'm so glad you're all here. I want to thank you. I want to thank the panelists, for sure, an amazing collection of powerful women. And thank all of you, and of course, all the people who made this conference a reality. And I do encourage you to stick around for the remaining panels. Thank you.
    
  
Disclaimer:
              Opinions or points of view expressed in these recordings represent those of the speakers and do not necessarily represent the official position or policies of the U.S. Department of Justice. Any commercial products and manufacturers discussed in these recordings are presented for informational purposes only and do not constitute product approval or endorsement by the U.S. Department of Justice.
  
Date Published: August 24, 2023
    
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