Over two years ago, the Justice Department and the FBI began a review of thousands of criminal cases to determine if any defendants were wrongfully convicted based on flawed forensic testimony.
The review included 2,600 convictions and 45 death-row cases from the 1980s and 1990s in which the FBI’s hair and fiber unit reported a match to a crime-scene sample before DNA testing of hair became common.
On July 10, 2012, Spencer S. Hsu of The Washington Post broke the story:
The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.
The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.
Hsu’s April 2012 article covered the stories of two DC men who were convicted largely on the testimony of FBI hair analysts. Both men were wrongly placed at the crime scenes by those analysts:
Since the Post report, Tribble’s conviction was vacated, and on Tuesday, prosecutors moved to overturn Odom’s conviction and declare him innocent. The Justice Department had not previously reviewed their cases.
The Justice Department said it was going to conduct the more expansive review:
“The Department and the FBI are in the process of identifying historical cases for review where a microscopic hair examination conducted by the FBI was among the evidence in a case that resulted in a conviction,” spokeswoman Nanda Chitre said in a statement. “We have dedicated considerable time and resources to addressing these issues, with the goal of reaching final determinations in the coming months.”
Last August, the FBI cut the review short because the agency wasn’t happy with the results, which are quite damning – nearly EVERY criminal case reviewed included flawed forensic testimony.
But the agency claims it had other reasons for stopping the research:
According to the FBI, the delay resulted, in part, “from a vigorous debate that occurred within the FBI and DOJ about the appropriate scientific standards we should apply when reviewing FBI lab examiner testimony — many years after the fact.”
“Working closely with DOJ, we have resolved those issues and are moving forward with the transcript review for the remaining cases,” the FBI said.
The FBI had reviewed about 160 cases before it stopped. Notification that “FBI examiners exceeded the limits of science” when linking hair to crime-scene evidence were offered for defendants in 23 cases – 14 of which were death-row cases.
Defendants in two more death-row cases and in 134 non-capital cases will be notified about the misconduct over the next month. The DOJ will also complete evaluations of 98 other cases by early October, including 14 more death-row cases.
Previously, the FBI claimed that one rogue examiner named Michael P. Malone was the source of the problems.
But Erin Murphy, a New York University law professor and expert on modern scientific evidence said there is much more involved:
“I see this as a tip-of-the-iceberg problem. It’s not as though this is one bad apple or even that this is one bad-apple discipline. There is a long list of disciplines that have exhibited problems, where if you opened up cases you’d see the same kinds of overstated claims and unfounded statements.”
This issue is nothing new – here’s a little background and history on the problems with forensic evidence.
Since at least the 1970s, FBI policy has stated that a hair association cannot be used as positive identification, like fingerprints, but that didn’t stop agents from regularly testifying to the near-certainty of matches.
In fact, no accepted research exists on how often hair from different people may appear the same. The FBI now uses visual hair comparison to rule out someone as a possible source of hair or as a screening step before more accurate DNA testing.
But that doesn’t do much for those convicted based on the faulty science and testimony in the past.
In the 1990s, Dr. Frederic Whitehurst was one of the FBI’s top scientists. He was also a whistleblower who bought attention to misconduct and fraud in the agency’s crime lab.
Whistleblowersblog.org reports that Dr. Whitehurst’s revelations led to the formation of an internal DOJ task force in 1996 to review thousands of impacted cases. But that task force operated in secret, and shut down nearly 10 years ago – without issuing a final report.
CBS News interviewed Dr. Whitehurst after the Justice Department inspector general validated his exposure of lab misconduct.
Here is that interview, which was recorded in 1998.
Despite Dr. Whitehurst’s disclosures nearly 20 years ago, the problems he exposed still exist.
In 2009, a National Academy of Sciences panel produced the following findings:
Expert comparisons of hair, handwriting, marks made by firearms on bullets, and patterns such as bite marks and shoe and tire prints are in some ways unscientific and subject to human bias, a National Academy of Sciences panel chartered by Congress found. Other techniques, such as in bullet-lead analysis and arson investigation, survived for decades despite poorly regulated practices and a lack of scientific method.
Even fingerprint identification is partly a subjective exercise that lacks research into the role of unconscious bias or even its error rate, the panel’s 328-page report said.
“The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure,” the panel concluded. (source)
Police and law enforcement agencies don’t want to relinquish control of their labs, despite failures being cited at every level since 2002:
Failures have been reported at about 30 federal, state and local crime labs serving the FBI, the Army and eight of the nation’s 20 largest cities.
Advances in DNA testing are exposing errors at unexpected rates. In November, researchers with the Urban Institute reported that new DNA testing appeared to clear convicted defendants in 16 percent of Virginia criminal convictions between 1973 and 1988 in which evidence was available for retesting.
A 2009 study of post-conviction DNA exonerations — now up to 289 nationwide — found invalid testimony in more than half the cases. (source)
The number of post-conviction DNA exonerations is now up to 317, according to The Innocence Project. Eighteen of those were death row inmates.
The National Academy of Sciences report cited the lack of effective standards for examiners, laboratories and court testimony. It also criticized Justice Department agencies for a dearth of research into problems and for being “too wedded” to the status quo to be trusted to lead reforms, said Hsu for The Post.
Two weeks ago, the inspector general released a report that revealed more disturbing details about the FBI lab misconduct scandal:
The report said the FBI took more than five years to identify more than 60 death-row defendants whose cases had been handled by 13 lab examiners whose work had been criticized in a 1997 inspector-general investigation.
As a result, state authorities could not consider whether to stay sentences, and three men were put to death. One of those defendants, who was executed in Texas in 1997, would not have been eligible for the death penalty without the FBI’s flawed work, the report said.
“Failures of this nature undermine the integrity of the United States’ system of justice and the public’s confidence in our system,” the 146-page report stated. The failure to admit errors at the time “also injured the reputation of the FBI and the Department.” (source)
Gross misconduct of this kind really makes you wonder how many innocent people are presently incarcerated – and how many of those people will actually be exonerated. The US has the highest incarceration rate in the world, with nearly 2.4 million Americans currently behind bars.
How many of the 2.4 million don’t belong there?