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2015-04-19 09:00:16 UTC
http://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html
FBI overstated forensic hair matches in nearly all trials before 2000
By Spencer S. Hsu April 18 at 5:44 PM
The Justice Department and FBI have formally acknowledged that nearly
every examiner in an elite FBI forensic unit gave flawed testimony in
almost all trials in which they offered evidence against criminal
defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratorys microscopic hair comparison
unit, 26 overstated forensic matches in ways that favored prosecutors
in more than 95 percent of the 268 trials reviewed so far, according
to the National Association of Criminal Defense Lawyers (NACDL) and
the Innocence Project, which are assisting the government with the
countrys largest post-conviction review of questioned forensic
evidence.
The cases include those of 32 defendants sentenced to death. Of those,
14 have been executed or died in prison, the groups said under an
agreement with the government to release results after the review of
the first 200 convictions.
The FBI errors alone do not mean there was not other evidence of a
convicts guilt. Defendants and federal and state prosecutors in 46
states and the District are being notified to determine whether there
are grounds for appeals. Four defendants were previously exonerated.
The admissions mark a watershed in one of the countrys largest
forensic scandals, highlighting the failure of the nations courts for
decades to keep bogus scientific information from juries, legal
analysts said. The question now, they said, is how state authorities
and the courts will respond to findings that confirm long-suspected
problems with subjective, pattern-based forensic techniques like
hair and bite-mark comparisons that have contributed to wrongful
convictions in more than one-quarter of 329 DNA-exoneration cases
since 1989.
In a statement, the FBI and Justice Department vowed to continue to
devote resources to address all cases and said 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, as well as
the application of all disciplines of forensic science.
Peter Neufeld, co-founder of the Innocence Project, commended the FBI
and department for the collaboration but said, The FBIs three-decade
use of microscopic hair analysis to incriminate defendants was a
complete disaster.
We need an exhaustive investigation that looks at how the FBI, state
governments that relied on examiners trained by the FBI and the courts
allowed this to happen and why it wasnt stopped much sooner, Neufeld
said.
Norman L. Reimer, the NACDLs executive director, said, Hopefully,
this project establishes a precedent so that in future situations it
will not take years to remediate the injustice.
While unnamed federal officials previously acknowledged widespread
problems, the FBI until now has withheld comment because findings
might not be representative.
Sen. Richard Blumenthal (D-Conn.), a former prosecutor, called on the
FBI and Justice Department to notify defendants in all 2,500 targeted
cases involving an FBI hair match about the problem even if their case
has not been completed, and to redouble efforts in the three-year-old
review to retrieve information on each case.
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, Blumenthal said.
We need an exhaustive investigation that looks at how the FBI, state
governments that relied on examiners trained by the FBI and the courts
allowed this to happen and why it wasnt stopped much sooner, Neufeld
said.
Norman L. Reimer, the NACDLs executive director, said, Hopefully,
this project establishes a precedent so that in future situations it
will not take years to remediate the injustice.
While unnamed federal officials previously acknowledged widespread
problems, the FBI until now has withheld comment because findings
might not be representative.
Sen. Richard Blumenthal (D-Conn.), a former prosecutor, called on the
FBI and Justice Department to notify defendants in all 2,500 targeted
cases involving an FBI hair match about the problem even if their case
has not been completed, and to redouble efforts in the three-year-old
review to retrieve information on each case.
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, Blumenthal said.
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and
the panels ranking Democrat, Patrick J. Leahy (Vt.), urged the bureau
to conduct a root-cause analysis to prevent future breakdowns.
It is critical that the Bureau identify and address the systemic
factors that allowed this far-reaching problem to occur and continue
for more than a decade, the lawmakers wrote FBI Director James B.
Comey on March 27, as findings were being finalized.
The FBI is waiting to complete all reviews to assess causes but has
acknowledged that hair examiners until 2012 lacked written standards
defining scientifically appropriate and erroneous ways to explain
results in court. The bureau expects this year to complete similar
standards for testimony and lab reports for 19 forensic disciplines.
Federal authorities launched the investigation in 2012 after The
Washington Post reported that flawed forensic hair matches might have
led to the convictions of hundreds of potentially innocent people
since at least the 1970s, typically for murder, rape and other violent
crimes nationwide.
The review confirmed that FBI experts systematically testified to the
near-certainty of matches of crime-scene hairs to defendants,
backing their claims by citing incomplete or misleading statistics
drawn from their case work.
In reality, there is no accepted research on how often hair from
different people may appear the same. Since 2000, the lab has used
visual hair comparison to rule out someone as a possible source of
hair or in combination with more accurate DNA testing.
Warnings about the problem have been mounting. In 2002, the FBI
reported that its own DNA testing found that examiners reported false
hair matches more than 11 percent of the time. In the District, the
only jurisdiction where defenders and prosecutors have re-investigated
all FBI hair convictions, three of seven defendants whose trials
included flawed FBI testimony have been exonerated through DNA testing
since 2009, and courts have exonerated two more men. All five served
20 to 30 years in prison for rape or murder.
University of Virginia law professor Brandon L. Garrett said the
results reveal a mass disaster inside the criminal justice system,
one that it has been unable to self-correct because courts rely on
outdated precedents admitting scientifically invalid testimony at
trial and, under the legal doctrine of finality, make it difficult for
convicts to challenge old evidence.
The tools dont exist to handle systematic errors in our criminal
justice system, Garrett said. 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.
Federal authorities are offering new DNA testing in cases with errors,
if sought by a judge or prosecutor, and agreeing to drop procedural
objections to appeals in federal cases.
However, biological evidence in the cases often is lost or
unavailable. Among states, only California and Texas specifically
allow appeals when experts recant or scientific advances undermine
forensic evidence at trial.
Defense attorneys say scientifically invalid forensic testimony should
be considered as violations of due process, as courts have held with
false or misleading testimony.
The FBI searched more than 21,000 federal and state requests to its
hair comparison unit from 1972 through 1999, identifying for review
roughly 2,500 cases where examiners declared hair matches.
Reviews of 342 defendants convictions were completed as of early
March, the NACDL and Innocence Project reported. In addition to the
268 trials in which FBI hair evidence was used against defendants, the
review found cases in which defendants pleaded guilty, FBI examiners
did not testify, did not assert a match or gave exculpatory testimony.
When such cases are included, by the FBIs count examiners made
statements exceeding the limits of science in about 90 percent of
testimonies, including 34 death-penalty cases.
The findings likely scratch the surface. The FBI said as of mid-April
that reviews of about 350 trial testimonies and 900 lab reports are
nearly complete, with about 1,200 cases remaining.
The bureau said it is difficult to check cases before 1985, when files
were computerized. It has been unable to review 700 cases because
police or prosecutors did not respond to requests for information.
Also, the same FBI examiners whose work is under review taught 500 to
1,000 state and local crime lab analysts to testify in the same ways.
Texas, New York and North Carolina authorities are reviewing their
hair examiner cases, with ad hoc efforts underway in about 15 other
states.
FBI overstated forensic hair matches in nearly all trials before 2000
By Spencer S. Hsu April 18 at 5:44 PM
The Justice Department and FBI have formally acknowledged that nearly
every examiner in an elite FBI forensic unit gave flawed testimony in
almost all trials in which they offered evidence against criminal
defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratorys microscopic hair comparison
unit, 26 overstated forensic matches in ways that favored prosecutors
in more than 95 percent of the 268 trials reviewed so far, according
to the National Association of Criminal Defense Lawyers (NACDL) and
the Innocence Project, which are assisting the government with the
countrys largest post-conviction review of questioned forensic
evidence.
The cases include those of 32 defendants sentenced to death. Of those,
14 have been executed or died in prison, the groups said under an
agreement with the government to release results after the review of
the first 200 convictions.
The FBI errors alone do not mean there was not other evidence of a
convicts guilt. Defendants and federal and state prosecutors in 46
states and the District are being notified to determine whether there
are grounds for appeals. Four defendants were previously exonerated.
The admissions mark a watershed in one of the countrys largest
forensic scandals, highlighting the failure of the nations courts for
decades to keep bogus scientific information from juries, legal
analysts said. The question now, they said, is how state authorities
and the courts will respond to findings that confirm long-suspected
problems with subjective, pattern-based forensic techniques like
hair and bite-mark comparisons that have contributed to wrongful
convictions in more than one-quarter of 329 DNA-exoneration cases
since 1989.
In a statement, the FBI and Justice Department vowed to continue to
devote resources to address all cases and said 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, as well as
the application of all disciplines of forensic science.
Peter Neufeld, co-founder of the Innocence Project, commended the FBI
and department for the collaboration but said, The FBIs three-decade
use of microscopic hair analysis to incriminate defendants was a
complete disaster.
We need an exhaustive investigation that looks at how the FBI, state
governments that relied on examiners trained by the FBI and the courts
allowed this to happen and why it wasnt stopped much sooner, Neufeld
said.
Norman L. Reimer, the NACDLs executive director, said, Hopefully,
this project establishes a precedent so that in future situations it
will not take years to remediate the injustice.
While unnamed federal officials previously acknowledged widespread
problems, the FBI until now has withheld comment because findings
might not be representative.
Sen. Richard Blumenthal (D-Conn.), a former prosecutor, called on the
FBI and Justice Department to notify defendants in all 2,500 targeted
cases involving an FBI hair match about the problem even if their case
has not been completed, and to redouble efforts in the three-year-old
review to retrieve information on each case.
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, Blumenthal said.
We need an exhaustive investigation that looks at how the FBI, state
governments that relied on examiners trained by the FBI and the courts
allowed this to happen and why it wasnt stopped much sooner, Neufeld
said.
Norman L. Reimer, the NACDLs executive director, said, Hopefully,
this project establishes a precedent so that in future situations it
will not take years to remediate the injustice.
While unnamed federal officials previously acknowledged widespread
problems, the FBI until now has withheld comment because findings
might not be representative.
Sen. Richard Blumenthal (D-Conn.), a former prosecutor, called on the
FBI and Justice Department to notify defendants in all 2,500 targeted
cases involving an FBI hair match about the problem even if their case
has not been completed, and to redouble efforts in the three-year-old
review to retrieve information on each case.
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, Blumenthal said.
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and
the panels ranking Democrat, Patrick J. Leahy (Vt.), urged the bureau
to conduct a root-cause analysis to prevent future breakdowns.
It is critical that the Bureau identify and address the systemic
factors that allowed this far-reaching problem to occur and continue
for more than a decade, the lawmakers wrote FBI Director James B.
Comey on March 27, as findings were being finalized.
The FBI is waiting to complete all reviews to assess causes but has
acknowledged that hair examiners until 2012 lacked written standards
defining scientifically appropriate and erroneous ways to explain
results in court. The bureau expects this year to complete similar
standards for testimony and lab reports for 19 forensic disciplines.
Federal authorities launched the investigation in 2012 after The
Washington Post reported that flawed forensic hair matches might have
led to the convictions of hundreds of potentially innocent people
since at least the 1970s, typically for murder, rape and other violent
crimes nationwide.
The review confirmed that FBI experts systematically testified to the
near-certainty of matches of crime-scene hairs to defendants,
backing their claims by citing incomplete or misleading statistics
drawn from their case work.
In reality, there is no accepted research on how often hair from
different people may appear the same. Since 2000, the lab has used
visual hair comparison to rule out someone as a possible source of
hair or in combination with more accurate DNA testing.
Warnings about the problem have been mounting. In 2002, the FBI
reported that its own DNA testing found that examiners reported false
hair matches more than 11 percent of the time. In the District, the
only jurisdiction where defenders and prosecutors have re-investigated
all FBI hair convictions, three of seven defendants whose trials
included flawed FBI testimony have been exonerated through DNA testing
since 2009, and courts have exonerated two more men. All five served
20 to 30 years in prison for rape or murder.
University of Virginia law professor Brandon L. Garrett said the
results reveal a mass disaster inside the criminal justice system,
one that it has been unable to self-correct because courts rely on
outdated precedents admitting scientifically invalid testimony at
trial and, under the legal doctrine of finality, make it difficult for
convicts to challenge old evidence.
The tools dont exist to handle systematic errors in our criminal
justice system, Garrett said. 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.
Federal authorities are offering new DNA testing in cases with errors,
if sought by a judge or prosecutor, and agreeing to drop procedural
objections to appeals in federal cases.
However, biological evidence in the cases often is lost or
unavailable. Among states, only California and Texas specifically
allow appeals when experts recant or scientific advances undermine
forensic evidence at trial.
Defense attorneys say scientifically invalid forensic testimony should
be considered as violations of due process, as courts have held with
false or misleading testimony.
The FBI searched more than 21,000 federal and state requests to its
hair comparison unit from 1972 through 1999, identifying for review
roughly 2,500 cases where examiners declared hair matches.
Reviews of 342 defendants convictions were completed as of early
March, the NACDL and Innocence Project reported. In addition to the
268 trials in which FBI hair evidence was used against defendants, the
review found cases in which defendants pleaded guilty, FBI examiners
did not testify, did not assert a match or gave exculpatory testimony.
When such cases are included, by the FBIs count examiners made
statements exceeding the limits of science in about 90 percent of
testimonies, including 34 death-penalty cases.
The findings likely scratch the surface. The FBI said as of mid-April
that reviews of about 350 trial testimonies and 900 lab reports are
nearly complete, with about 1,200 cases remaining.
The bureau said it is difficult to check cases before 1985, when files
were computerized. It has been unable to review 700 cases because
police or prosecutors did not respond to requests for information.
Also, the same FBI examiners whose work is under review taught 500 to
1,000 state and local crime lab analysts to testify in the same ways.
Texas, New York and North Carolina authorities are reviewing their
hair examiner cases, with ad hoc efforts underway in about 15 other
states.