As the entire world hunkered down in the early grips of the pandemic, the United States Supreme Court issued a ruling that upended the criminal justice system in the state of Oklahoma. The court ruled that congress had not officially withdrawn the status of certain Indian reservations. This meant that these reservations are still considered “Indian territories” and are not subject to Oklahoma state law.
While McGirt v. Oklahoma had sweeping implications, one of the most significant was for the criminal justice system. It meant that the State of Oklahoma did not have jurisdiction over crimes that occurred on Indian country and that cases that had already been tried on that state level now had to be retried on the federal level.
Both prosecutors and defense attorneys found themselves in the unique position of trying new “cold cases.” Most criminal cases move through the criminal justice system relatively quickly. Witnesses’ memories are still fresh and there is still time to collect and analyze evidence.
But Gestring pointed out that this new tsunami of cases includes criminal convictions where witnesses might no longer be available, there is no new evidence to collect, the previous evidence that was collected may have been discarded, or the significance of the evidence that might have been used at the original trial might have changed.
Over the course of Brian Gestring’s three decades career in forensic science, he has worked on numerous cold cases including the disappearance of Etan Patz, the first child to be displayed on the side of a milk carton. He was also instrumental in developing, obtaining approval for, and implementing New York State’s familial search program which has already resulted in arrests and convictions on long cold cases.
This “new normal” in Oklahoma is going to force both prosecutors and defense attorneys to revisit serious criminal cases years, and sometimes decades, after the original conviction. Looking at the best way to approach these new cold cases, Brian Gestring always recommends swift action. While there are standards for retaining court records, the rules related to retaining physical evidence are less clear. It’s possible that any evidence that was retained would be discarded after the state conviction was overturned since the only real guidance seems to apply to retaining biological evidence for the duration of a sentence.
That means that lawyers who take on these cases can't assume that the information they need will still be there when they get there. Preservation isn't just a process. It is the first real test of whether justice can still work years later. Since the only cases that the government will look to retry will be those involving violent crimes charged under the Major Crimes Act.
These crimes have the highest likelihood of having physical evidence. Preserving that evidence right away is critical.
Science changes. Standards change. What once looked convincing may now appear incomplete, overstated, or even unreliable. At the same time, evidence that once seemed useless may now hold answers no one could extract years ago. Gestring says that the only way to figure this out is to look at all the evidence again with a new eye.
Many types of analysis that were previously relied upon have recently been found to be unreliable. Hair evidence was routinely used in the investigation of violent crime, but recent studies have shown that in many cases previous testimony regarding hair had overstated its significance and potentially led to wrongful convictions.
Similarly, the reliance on testing for gunshot residue on the hands of shooters has largely been discontinued due to problems with interpretation. Studies have shown how easy it is for law enforcement to accidentally contaminate a sample. They have also demonstrated how similar particles can be found from innocuous sources like disk brakes on cars. Bullet lead analysis has also fallen out of favor. The FBI used to test ammunition found in firearms recovered from crime scenes against ammunition recovered from a suspect’s residence. Challenges to the underlying statistical basis for this test have shown it is not always reliable.
Bitemark analysis has been criticized most harshly. People have asked whether examiners can even be sure that an injury is a human bite mark in the first place. These changes aren't small. They get to the heart of how much faith a court should have in evidence that once seemed convincing.
Some forensic fields haven't been replaced, but they should be looked at again because they can be very subjective. Fingerprint comparisons, firearm analysis, shoe impressions, and tire tread analysis are still used in criminal cases, but Gestring says that if these methods were used in a previous conviction, they should be looked at again. Analyzing bloodstain patterns is similar. The method is still used, but people are now paying more attention to the qualifications of the examiners and how sure the conclusions are in court. That change is important. It reminds people that evidence isn't just about the mark, print, or stain itself. It also depends on who is interpreting it.
The news isn’t always bad and Gestring points to breakthroughs in DNA testing. Blood, semen, saliva, and other samples can now produce more useful information than they could in the past because testing methods have become more sensitive. Computer software also now regularly helps forensic scientists unravel complex DNA mixtures that previously could not be interpreted. These developments can now shift the direction in a case by giving this old evidence a new voice.
Databases have also changed for the better. Gestring highlighted how many more DNA samples are now in government databases and techniques like genetic genealogy can now search for samples beyond just those found in government systems. Databases have also revolutionized the value of fingerprint and ballistic evidence making more connections than previously possible.
What makes Gestring's recommendations interesting is that they don’t treat forensics like a magic trick. They treats evidence as something that needs to be handled with care and skepticism. Just because they went through a courtroom once, old convictions can make people feel falsely confident. His work goes against that comfort. It asks questions that are harder. Was the science behind it sound? Would that testimony still be true today? Did they not do useful testing because the case ended in a plea?
Those questions are not vague. In Oklahoma after McGirt, these are real questions with real effects.
Gestring's recommendations ultimately demonstrate that "new-old" cases require more than mere procedural review. They need to know more about how forensic science changes, how legal systems hold on to assumptions, and how the truth in a case can change when the tools used to measure it change too. That might make you uneasy, but it's also what makes a careful review worth it. Sometimes justice means being honest enough to see something different when you look at the same evidence.
