“HEADS MUST ROLL!” This should be the headline written on every newspapaer in the country about the recent report from the Justice Department about the FBI’s use of forensic hair analysis from 1980-2000. The Justice Department and FBI have formally acknowledged that 26 out of 28 examiners in a supposedly elite FBI forensic unit gave flawed testimony in almost ALL trials in which they offered evidence against criminal defendants. Did you hear that – 26 out of 28 forensic examiners – those guys/gals America worship watching the 100+ forensic-related TV shows currently on air – gave flawed or improper testimony in 257 out of 268 trials examined during the study. That’s 95% of all the trials examined!Why isn’t this on every news channel? The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison awaiting execution. While the FBI and DOJ are quick to point out that there was other evidence in most of those cases, it cannot be disputed that an FBI forensic examiner testifying that hair found on the victim or at the crime scene matched the defendant was likley a strong fctor in the defendant’s conviction. Four defendants whose trials were invovled in this study have already been exonerated through DNA. And let’s get this straight – we are not talking about mistakes. We’re talking about falsely testifying to either the validity of the match and the statistics on hair evidence in general. 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,as most good defense lawyers know, there is no accepted research on how often hair from different people may appear the same. But this line of questioning during cross-examination usually did not amount to much when you have a certified FBI forensic specialist up there on the stand attesting to the results.
Forensics is powerful stuff – it makes jurors comfortable that “They got the right guy.” Eyewitnesses could be wrong; snitches could have a motive to lie; andand circumstanes pointig to a defendant’s guilt could be just coincidence. But an FBI agent swearing to God that the hair matches the defendant and that the odds of it being anyone else are 100,000 to 1 is difficult to ignore. And in many states without their own crime lab, they would send the hair to the FBI for analysis and testimony. Defendants and federal and state prosecutors in 46 states and the District of Columbia are being notified to determine whether there are grounds for appeals.
This is the result of a review of the first 342 cases studied to date. An incredible 1,200 more remain to be examined. Of those 1,200, in 700 of them prosecutors and/or police have yet to respond to the DOJ’s request for trial transcripts and information. Let’s get this ball rolling people! People are sitting in jail and on death row based on forensic testimony that we now know is likely “flawed” (at best). And this is only “hair” evidence. The DOJ intends to also look at bite-mark and blood evidence for the same time period.
Kudos to The Washington Post which caused this study to be done in the first place. 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.
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.” Great – in the meantime, it is highly likely that there are many innocent people sitting in jail. People who were put there on trumped-up and flawed FBI testimony. Peopel need to be held accountable, it’s as simple as that. That’s the best way to assure that this won’t happen again.
Follow Oscar Michelen on Twitter @oscarmichelen