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Continuing Government Failures: The FDA and Convictions of the Innocent

In the past, I have blogged about both of these issues, and so I thought I would report some updates on them.  First, the FDA is finally getting around to allowing additional college students access to the vaccine for meningitis B.

Ten months after a potentially deadly meningitis type B infection struck American college campuses, the federal government is finally getting around to making life-saving vaccines available to students at the affected schools.

Students at the University of California, Santa Barbara will have access to a vaccine broadly used to prevent the disease throughout the industrialized world, within “several weeks,” the Centers for Disease Control and Prevention claims, hopefully bringing one of the U.S. regulatory state’s most shameful chapters to a conclusion.

However soon the vaccines arrive in Santa Barbara, it will be too late for Aaron Loy, an 18-year-old freshman lacrosse player who underwent a double amputation after contracting meningitis B in November, more than eight months after the first case of the bacterial infection was isolated at Princeton University, 2,500 miles to the east. Loy is one of a dozen students who came down with the disease that kills, on average, 10 percent of those who contract it.

And there is this:

The agency . . . shipped a small supply of drugs to Princeton in December, but not to UC-Santa Barbara, even though both schools had equal need for the vaccine. Finally, the FDA determined this week that the vaccines could be shipped to Santa Barbara after all, in “several weeks,” though the disease can maim and kill within 24 hours.

The FDA could have worked around its own red tape and expedited approval of the vaccine. That’s not unusual. Recently, the FDA fast-tracked approval (link no longer available) of a vaccine for the influenza strain H5N1, even though there had not yet been reported cases of H5N1, and the vaccine had been subjected to significantly less clinical research than the meningitis B vaccine.

The second issue involves convicting the innocent.  Happily, another innocent man is being released from prison.  Kash Register was convicted 34 years ago for a murder that it turns out he did not commit.  This case is a little unusual because the conviction was overturned without the use of DNA evidence.  In this case, the culprit was a mistaken identification (which it turns out may have involved an intentional lie).  As is regularly true in these cases, it involves accusations of improper behavior by police who ignored or buried evidence that the accused was innocent.  There is also more subtle wrongdoing of the following kind:

And yet, according to Brandon Garrett, a law professor at the University of Virginia and the author of Convicting the Innocent, eyewitness misidentifications have played a leading role in nearly 75 percent of 250 convictions overturned by DNA evidence between 1989 and 2010. In more than one-half of those exonerations, the eyewitnesses start off unsure, a “glaring sign” of potential trouble as Garrett puts it, yet appear to become increasingly certain over time. This often corresponds with police practices like suggestive photo arrays, lineups, and even well-intentioned comments like “Good job!” after a witness makes an identification, however tentative. All of this can cause “contamination” of memory, Garrett says so that “there is no way to know after the fact whether the eyewitness could have actually picked the person with any degree of confidence.”

It is hard to know what to say about these actions.  Of course, one wants to condemn them and throw the book at wrongdoers, at least for ignoring or burying the evidence. Perhaps, the police believe they are just cutting some corners in order to convict the actual guilty person, but of course these cases show that they often do not know what they are doing. And, of course, when the wrong person is imprisoned, the guilty person goes free to kill again. 

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