Imagine you just walked into a murder trial. The prosecution has called up its expert witness to testify about the DNA evidence at the center of the case. 

“Using the Magic Wand 3000 and its trade secret technology, we were able to calculate that the DNA evidence from the crime scene is 1 trillion times more likely if it contains Mr. Smith’s DNA than if it does not.” 

Wait, did you hear that correctly? What do they mean the evidence is “likely”? And one trillion times more likely? Also, they used something called Magic Wand 3000? 

The witness directs his next comment to the jury. 

“You can rest assured that the Magic Wand 3000 works and is very accurate.” 

You wait expectantly for the defendant’s lawyer to cross-examine the witness and ask all the obvious questions that arise: What technology does this Magic Wand use? How does it even work? How does the expert witness know it’s so accurate? 

But the judge doesn’t even allow those questions, ruling that the makers of the Magic Wand 3000 have a right not to answer questions about the details of their technology because that would reveal their “trade secrets.” This leaves your questions unanswered — and a defendant potentially facing conviction based on a private company’s word.  

Despite the seeming absurdity of this fictional case, if you replace “Magic Wand 3000” with real DNA algorithms like “STRmix” and “TrueAllele,” this is a dilemma many defendants really face. These programs claim to be able to identify a suspect from a pool of several individuals’ DNA. However, the way they work is not transparent to the public or even to those accused of crimes based on their results. Government agencies and the private businesses that have developed and sold programs like STRmix and TrueAllele argue that crucial details about their operation and accuracy are trade secrets they cannot be forced to release, and courts across the country have been agreeing. 

But such claims cannot outweigh the constitutional rights of defendants to a fair and public trial. If defendants can’t properly confront the witnesses and evidence against them, their right to due process as guaranteed by the Sixth Amendment has been violated. Denying the public access to essential evidence in a criminal trial is also a violation of defendants’ right to a public trial. 

Fortunately, there has been a promising development going against the trend of recent court rulings. In October 2017, a California trial judge rightly recognized these problems. Ruling in the case of Florencio Jose Dominguez, a man accused of murder, the judge ordered that the state disclose to the defense information about STRmix, including the program’s source code, internal validation studies, user manuals, and more. The state has appealed the order, and this week the ACLU filed a friend-of-the-court brief arguing that the trial court made the right call. An assortment of other public-interest groups filed briefs as well. 

DNA results have been a critical and contentious part of Dominguez’s case for years. Prosecutors have already tried him twice for the same crime he is currently being accused of, and in both trials, DNA evidence was a central piece of the government’s case. While the first trial ended with a hung jury, the second trial featured the crime lab reanalyzing the DNA evidence and an expert witness testifying about the results. That trial ended with a conviction, but after it came to light that the crime lab issued new guidelines under which the DNA results were inconclusive — five days before the expert testified — Dominguez was granted a third trial. This time, the lab used the STRmix algorithm to test the crime scene DNA. 

Dominguez can only receive a fair trial if he is given the chance to understand how this algorithm works. 

DNA algorithms are not inherently good or bad, but they can be flawed — often in complex ways. And defendants, experts, and other members of the public must have the ability to identify those flaws. Claims of “trade secrets” cannot and do not outweigh individuals’ constitutional rights, and we’ll continue advocating for courts to make the right call in cases like this one. 

Children are crying for their parents while being held in small cages. The attorney general tells us the Bible justifies what we see and the White House press secretary backs him up. Be horrified and angered, but not because this is a new Trump transgression against real American values. America was in the business of separating families long before Trump. 

I am not talking about spurious claims that Obama did the same thing or the valid comparisons to how our criminal justice system uses a cash bail system that every day rips children from their families before they or their parents have been convicted of any crime. The true story is that the United States has a well-documented history of breaking up non-white families.

When we sent Japanese Americans to internment camps, families were often separated when fathers were sent hasty relocation orders and forced labor contracts. In some cases, family members (usually the father) had been arrested earlier and sent to a different camp.

Forty years later, the U.S. government apologized, provided reparations of $20,000 to every survivor of those internment camps, and blamed the “grave wrong” on “racial prejudice, war hysteria, and a failure of political leadership.” 

Sound familiar?

The separating of Native American families was more intentional. America deliberately tried to wipe native culture from our country. According to the Smithsonian’s National Museum of the American Indian, beginning in the late 1800s, thousands of American Indian children were forcibly sent to government-run or church-run “boarding schools,” where they were taught English and forbidden to speak their native languages.  

An exhibit at the museum includes a quote from Richard Henry Pratt, founder of the Carlisle Indian Industrial School, stating: “In Indian civilization I am a Baptist, because I believe in immersing the Indian in our civilization and when we get them under, holding them there until they are thoroughly soaked.”

The boarding schools forced children to cut their hair and give up their traditional clothing. Their meaningful native names were replaced with English ones. Their traditional religious practices were forcibly replaced with Christianity. They were taught that their cultures were inferior. Teachers sometimes ridiculed the students’ traditions. These lessons humiliated the students and taught them to be ashamed of their heritage.

“They tell us not to speak in Navajo language. You’re going to school. You’re supposed to only speak English,” John Brown Jr., a Navajo who served in World War II as a code talker by using his Navajo language for tactical communications the Japanese could not decode, told the museum in a 2004 interview. “And it was true. They did practice that, and we got punished if you was caught speaking Navajo.”

And then, of course, America enslaved Blacks for 246 years. Separating enslaved families was done for profit, for punishment, or simply because a seller or buyer wanted it that way in the 18th and 19th centuries. 

“Destroying families is one of the worst things done during slavery,” said Henry Fernandez, co-founder of the African American Research Collaborative and a senior fellow at the Center for American Progress. “The federal government maintained these evils through the fugitive slave laws and other rules which defined African Americans as property with which a slave owner could do whatever they wanted.”

Each of these policies, Fernandez said, begins with the assumption “that the idea of family is simply less important to people of color and that the people involved are less than human. To justify ripping families apart, the government must first engage in dehumanizing the targeted group.”

“The Weeping Time” exhibit at the Smithsonian Museum of African American History and Culture documents the U.S. history of separating children from parents.  “Night and day, you could hear men and women screaming … ma, pa, sister or brother … taken without any warning,” Susan Hamilton, a witness to a slave auction, recalled in a 1938 interview. “People was always dying from a broken heart.”

A report in the Maryland State Archives includes a narrative from a man named Charles Ball, who was enslaved as a child and remembered the day he was sold away from his mother.

“My poor mother, when she saw me leaving her for the last time, ran after me, took me down from the horse, clasped me in her arms, and wept loudly and bitterly over me,” Ball recalled. “My master seemed to pity her and endeavored to soothe her distress by telling her that he would be a good master to me, and that I should not want anything.”

Ball added that when his mother’s persisted, his master hit her with a rawhide whip.

Thousands of former slaves looked for lost relatives and children who had been sold away from their families. They placed thousands of ads in newspapers. Those ads are now being digitized in a project called “Last Seen: Finding Family After Slavery,” which is run by Villanova University’s graduate history program in collaboration with Philadelphia’s Mother Bethel AME Church.

Our history of separating families is no older than our use of the Bible to justify or transgressions against humanity. In 1667, Virginia law stated that if an enslaved person became Christian it did not mean freedom because the only way that conversion could happen was through the “charity and piety of their masters.” When Texas withdrew from the union it declared that enslaving people was justified by “the revealed will of the Almighty Creator.” William T. Thompson, the designer of the Confederate Flag said, “As a people, we are fighting to maintain the Heaven-ordained supremacy of the white man over the inferior or colored race.” Jeff Sessions is simply the most recent person to try to justify an indefensible policy by referring to the Bible. 

On June 14, Attorney General Jeff Sessions cited biblical scripture Romans 13 to claim support for the Trump administration’s forced separation of immigrant families. “I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order,” he said.

As it happens, this is the same passage cited by loyalist preachers who said America should not declare independence from England; it was cited by southerners defending slavery; and, it was cited to defend authoritarian rule in Nazi Germany and South African apartheid.

On July 7, 2016, the day after the shooting of Philando Castile, artists from the Twin Cities came together to create a public mural to process their shock and grief. In stark black and white lettering, the mural asked:

What do we tell our children when education didn’t matter? When compliance, age, or evidence didn’t matter? When guilt or innocence didn’t matter? When our outrage didn’t matter?

The building on which the mural lived was demolished shortly after its painting. But, like Castile, the mural lives on in memories of the community.

Philando Castile was shot and killed by Officer Jeronimo Yanez on July 6, 2016. A year later, Officer Yanez was acquitted of second-degree manslaughter and two counts of dangerous discharge of a firearm. Afterwards, the video footage that the ACLU of Minnesota fought to get released was finally made public. In the video, you see Castile shot unnecessarily by the frantic police officer in front of his girlfriend and her 4-year-old daughter.

Two years later, there is nothing reassuring to tell the hundreds of children at J.J. Hill Montessori Magnet School, where Castile worked for more than a decade. There was no reason for his killing.

But Castile is not the only person that Minnesota community members have had to grieve for in the two years since his killing. Last July, Justine Ruszczyk Damond was shot and killed by Minneapolis Police Officer Mohammed Noor after she called the police to report a possible sexual assault occurring near her home. Gilbert Salas was killed by St. James Police in February of this year. And, just last week, Thurman Blevins was shot by the police in North Minneapolis.

Families, friends, neighbors, and loved ones should not have to continually brace themselves for the next police shooting. Minnesota residents should not have to march in the streets demanding justice, only to have another member of their community shot.

For Minnesota to address the problem of how police use excessive and deadly force, we need to enact large-scale reforms across the state. To start, that means reforming the state law on body cameras. The legislature needs to mandate that all footage of such uses of force is made public as well as to establish minimum standards for body camera deployment by police departments, including mandatory activation, discipline for violating policy, compliance audits, and prohibiting officer review of footage prior to writing initial reports.

The police should not be allowed to hide behind a “criminal investigative data” classification to delay the release of video and audio in police incidents. This type of stonewalling is what is currently preventing us from accessing video and audio of the shooting of Thurman Blevins.

We also need to facilitate investigations and, where appropriate, discipline officers who use excessive force. First, the Minnesota Board of Peace Officer Standards and Training, which is responsible for dispensing occupational licenses to law enforcement, should be empowered to act like every other professional licensing board and conduct its own separate investigations and make its own decisions about actions against an officer’s license.

The legislature also needs to create an independent state agency responsible for investigating and prosecuting police officers who engage in excessive force and other police misconduct. Finally, Minnesota municipalities need to give civilian review boards the authority to investigate and discipline officers who abuse their authority.

But even these reforms may not be sufficient. For example, even when there is footage of police misconduct, like in Castile’s case, it has not led to a conviction of an officer or the revoking of their license. Above all, what we need to do is fundamentally transform the system and change the laws by which we judge police conduct.

Existing legal precedents fail to deter officer misconduct, and it is time for courts to re-examine them. Under the Fourth Amendment, an officer’s subjective reason for pulling somebody over is irrelevant. As long as the officer has any probable cause for the stop, the courts will find the officer is in compliance with the Fourth Amendment. Racial profiling violates the 14th Amendment, but it requires proof of intentional discrimination — something that is very difficult to prove.

So young African-American men like Castile get pulled over time and time again for minor offenses with little or no recourse for the officers who racially profile them. The Fourth Amendment prohibits “unreasonable searches and seizures” and an officer’s record of disproportionate stops of people of color should be part of the equation when courts consider whether a particular stop was reasonable.

And courts looking at excessive force claims often give police every benefit of the doubt. In fact, two recent U.S. Supreme Court decisions, Kisela v. Hughes and County of Los Angeles v. Mendez, give police wide latitude to shoot people, making it even harder to hold police officers accountable in our judicial system.

If Minnesota police continue to refuse to hold officers accountable when they use excessive and deadly force, then we will have to re-evaluate the power and tools that we give to the police and fund alternatives to policing, such as mental health first-responders, restorative justice initiatives, and community-based programs that do not require an armed police response. As the system stands now, so clearly stacked against victims of police violence, that may be our only choice.