Hairs Out of Place

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By Jacqueline Stoughton

Three cases of violent crimes committed between 1985 and 1999 in Connecticut may see their day in court again following the discovery of flawed testimonies in 90 percent of cases analyzed in the FBI’s Microscopic Hair Comparison Analysis Review. Twenty-six of the FBI Lab’s 28 examiners were found to have submitted testimonies or lab reports containing false statements in court prior to 2000.

2,500 cases across the country, including those that took place in Connecticut, are remaining unnamed while the FBI and Department of Justice gather all evidence and conclude their independent investigations. The FBI has declined to make a statement regarding the Connecticut cases due to their lack of certainty.

“The prosecutors and defense attorneys will determine if a potentially erroneous statement was material or relevant to the conviction in these cases,” said FBI Special Agent Ann Todd of Public Affairs. “At this time the FBI has no plans to release additional information regarding the ongoing review or the cases involved in the review.”

So far, 257 cases across the country have been identified as containing examiners’ flawed testimonies. Of those cases, 33 defendants were sentenced to death; 14 died in prison or were executed.“These findings are an appalling indictment of our criminal justice system, not only for potential 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,” said Senator Richard Blumenthal (D-Conn.) in a press release.

Blumenthal states the need to understand how this could have happened, along with how to prevent such a grave mistake from happening in the future. “[We need to] determine how to provide justice for the hundreds of individuals who have been wronged.”

“The Department has been working together with the Innocence Project and the National Association of Criminal Defense Lawyers (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 in the FBI’s Science and Technology Branch, in a press release.

Hess explains that the FBI is beginning to use mitochondrial DNA hair analysis in addition to the current microscopic analysis to increase the accuracy of past and future results.

Norman Reimer, Executive Director of NACDL, also stated in the FBI press release: “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.”

“In the past, the FBI said they microscopically passed 1 in 10,000 matches; they were misleading the jury to think these hairs are identical,” said Dr. Henry Lee, Associate Vice President and Professor of Forensic Science at the University of New Haven. Dr. Lee explains that Connecticut never used to use hair as a physical form of identification evidence. For this reason, attorneys were frequently reminded that the volume of evidence hair can hold is always limited.

According to the official laboratory standards listed on the FBI website, all laboratory personnel must complete the documented training program and continue their education by attending up to date courses at a minimum of once a year. Forensic examiners require a BA/BS degree, a basic knowledge of the foundations of forensic DNA analysis, a minimum of six months experience in a forensics DNA laboratory and the successful completion of a qualifying test before beginning independent case work assignments.

Dr. Lee explains how many laboratories across the country have been following the standard FBI reporting format, which has received a lot of negative feedback. However, Dr. Lee says each different case has its unique qualities making it difficult to say that hair as evidence can’t be used at all, since hair still holds tremendous volume as evidence.

“The problem starts with the examiner if they do not have a good solid scientific background; they just learn about hair comparison. [Labs should be] training the investigator and having a standard reporting format in the lab and an operation manual…Scientists need to follow that and their supervisor should review the product of their work,” said Dr. Lee. “The lack of supervision, training, and lab policy may have impacted the outcome.”

The Department of Justice, FBI, Innocence Project, and NACDL are currently taking steps to improve the flawed results and set new standards to ensure mistakes like this don’t reoccur.

These steps include conducting an independent investigation of the FBI laboratory protocols, practices, and procedures that will determine what went wrong and why it continued for so long. It’s also being strongly encouraged by the Department of Justice that states conduct their own independent investigations reviewing the training of examiners by the FBI in state and local crime labs.

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