April 21, 2015 -
According to a recent article published in the Washington Post, the U.S. Department of Justice and the Federal Bureau of Investigation (FBI) have acknowledged that, for over two decades before the year 2000, nearly every examiner in the microscopic hair comparison unit of the FBI had given flawed testimony in nearly all trials, where they gave evidence against criminal defendants.
An on-going review has found that FBI testimony on microscopic hair analysis contained errors in at least 90 percent of cases.
According to the analysis conducted in conjunction with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL), 26 of 28 FBI analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous data.
The review being conducted focuses on cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at the FBI.
Before mitochondrial DNA testing was used to analyze hair in criminal cases, prosecutors throughout the United States routinely relied on microscopic hair comparison to link a criminal defendant to a crime. The practice was deemed “highly unreliable” in the 2009 National Academy of Sciences report on forensic science, Strengthening Forensic Science in the United States: A Path Forward.
Nevertheless, some jurisdictions still continue to use hair analysis where mitochondrial DNA testing is deemed too expensive, time consuming or is otherwise unavailable. According to Innocence Project data, 74 of the 329 wrongful convictions overturned by DNA evidence involved faulty hair evidence.
“The Department has been working together with the Innocence Project and NACDL to address errors made in statements by FBI examiners regarding microscopic hair analysis in the context of testimony and laboratory reports,” said Amy Hess, Executive Assistant Director, Science and Technology Branch, FBI. “Such statements are no longer being made by the FBI, and the FBI is also now employing mitochondrial DNA hair analysis in addition to microscopic analysis.”
“However, the Department and the FBI 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 also are committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science. The Department and FBI have devoted considerable resources to this effort and will continue to do so until all of the identified hair cases are addressed.”
The government identified nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis. As of March 2015, the FBI had reviewed approximately 500 cases. The majority of these cases were trials and the transcript of examiner testimony was reviewed. Some of these cases ended in guilty pleas, limiting the review to the original lab report.
In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257, which equates to 96 percent of the cases. Defendants in at least 35 of these cases received the death penalty and errors were identified in 33, or 94 percent, of those cases.
Nine of these defendants have already been executed and five died of other causes while on death row. The states with capital cases included Arizona, California, Florida, Indiana, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee and Texas. It should be noted that this is an ongoing process and that the numbers referenced above will change.
Norman L. Reimer, Executive Director and founder of the NACDL, noted: “It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence. Just as we need lawmakers to prevent future systemic failures, we need courts to give those who were impacted by this evidence a second look at their convictions.”
The Innocence Project, NACDL and Winston & Strawn LLP are assisting the Department of Justice as it works to locate and notify defense counsel of the results of this review, which is especially critical in the cases of persons where errors were identified.
NACDL is also working to ensure that all individuals who were defendants in affected cases will have access to a volunteer lawyer to review this new evidence, advise them on how it may impact their conviction, and challenge convictions based on the invalid evidence in appropriate cases.
The FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution. Additionally, in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants’ petitions seeking a new, fair trial because of the faulty evidence. But the majority of the FBI examiner testimony was provided in state court prosecutions, and it will be up to the individual states to determine if they will follow DOJ’s leading in permitting these cases to be litigated.