In what is probably the most appalling issue of injustice that I have covered to date for Legal Reader, the FBI confirmed on Monday, April 20th, that approximately 95 percent of hair sample analyses it used to help convict suspects between 1985 and 1999 relied on flawed methodology. The revelations stem from a 2-year investigation into the reliability of hair samples used in over 2,500 cases. The results showed that 258 of the first 267 cases examined involving hair sample-matching evidence were scientifically invalid, including flawed testimony from 26 of the 28 examiners in the FBI laboratory’s microscopic hair comparison unit. This number includes 33 cases leading to death sentences, of which, 9 people have been executed and 5 have died in prison. Flaws in this process have been noted for years, including in 2002, when the FBI reported that its own DNA testing found that examiners reported false hair matches more than 11 percent of the time.
The FBI acknowledges that written standards regarding hair sample analysis were not completed until 2012, yet it consistently relied on so-called expert witnesses, some who claimed that only one in 10 million possible samples could have matched the defendant. One such claim came from an “expert” who boasted about his extensive experience during a case, after which it was discovered that none of the alleged hair samples matched the defendant, and one was even from a dog. A 2009 report by the National Research Council found that apart from DNA testing, “no forensic method had been rigorously shown to consistently and reliably demonstrate a connection between evidence and a specific person.” Although thorough scientific understanding of the complexity of hair sample matching is still murky, the consensus is that it can be used to rule-out suspects, but certainly not to be used to convict. A 2013 FBI review of the flawed procedures concluded that:
- Microscopic hair analysis could not scientifically distinguish one individual to the exclusion of all others.
- Statistical weight could not be given to comparisons to suggest a likelihood that the hair derived from a specific source.
- Expert witnesses should not cite the number of hair analyses they had conducted in the lab to bolster the idea that they could definitively state that a hair belonged to a specific individual.
To their credit, the FBI and the Justice Department are working with the Innocence Project to undo as much of the damage of potentially wrongful convictions as possible. In a joint statement, the agencies say they “are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI are also committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science” While commending the joint effort, Innocence Project co-founder Peter Neufeld said, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.” Another prominent figure, Senator Richard Blumenthal (D-CT), has demanded that the FBI notify all 2500 defendants targeted in the investigation, saying that, “These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law.” Additionally, Senator Patrick Leahy (D-VT) wrote to FBI Director, James B. Comey on March 27th, requesting that the FBI conduct a “root-cause” investigation in order to prevent similar system-wide failures in the future.
Despite assuming that the joint effort is sincere in seeking justice for those wrongly convicted, of which many of the hair sample failures may not be the only condemning evidence, it may be much more difficult to achieve than hoped. University of Virginia law professor, Brandon L. Garrett observes, “The tools don’t exist to handle systematic errors in our criminal justice system. The FBI deserves every recognition for doing something really remarkable here. The problem is there may be few judges, prosecutors or defense lawyers who are able or willing to do anything about it.” By mid-April, the FBI has nearly completed reviews of 350 testimonies and 900 lab reports, with about 1200 more cases remaining. Many cases that occurred prior to 1985 will be nearly impossible to review given the lack of computer records, and the agency has been unable to review about 700 cases due to lack of response from police and prosecutors of the FBI’s requests for information.
While it impossible to truly assess the overall damage to a human being who has been wrongfully convicted, with all of the tangible and intangible injustices involved, there is hope that the investigation will prevent future miscarriages. In practical measures to help the process along, the agencies are offering new DNA testing in flawed cases, if agreed to by a judge or prosecutor, as well as dropping procedural objections to federal appeals. The combined efforts from the two agencies, as well as the Innocence Project’s work, may help to exonerate as many wrongfully-convicted people as the system will allow, but it is in the prevention of future “disasters” that these efforts can make a permanent impact. As National Association of Criminal Defense Lawyers executive director, Norman L. Reimer says, “Hopefully, this project establishes a precedent so that in future situations it will not take years to remediate the injustice.”
New York Times – Eric S. Lander
The Guardian – Ed Pilkington
Washington Post – Spencer S. Hsu