Friday, November 12, 2010

Faulty hair forensics used to convict executed defendant

I don't suppose this will change anybody's mind on the death penalty pro or con, but it appears Texas may have executed a defendant based on a bogus forensic hair comparison. The Texas Observer has the scoop in a story which opens:
Claude Jones always claimed that he wasn’t the man who walked into an East Texas liquor store in 1989 and shot the owner. He professed his innocence right up until the moment he was strapped to a gurney in the Texas execution chamber and put to death on Dec. 7, 2000. His murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair—that prosecutors claimed belonged to Jones.

But DNA tests completed this week at the request of the Observer and the New York-based Innocence Project show the hair didn’t belong to Jones after all. The day before his death in December 2000, Jones asked for a stay of execution so the strand of hair could be submitted for DNA testing. He was denied by then-Gov. George W. Bush.

A decade later, the results of DNA testing not only undermine the evidence that convicted Jones, but raise the possibility that Texas executed an innocent man.
State Sen. Rodney Ellis issued a press release lamenting that "the General Counsel memo to then President-elect Bush failed to let him know that Jones was seeking DNA testing of the only physical evidence in the case. That is simply unacceptable and raises serious concerns about the post-conviction review process for death row inmates in Texas." [emphasis added] Good point. Between this and the Willingham case, it's clear Texas' clemency process under the last two governors hasn't been adequately vetting capital cases, much like the Court of Criminal Appeals.

However, the Observer stops short of claiming the evidence exonerates Jones:
Anti-death penalty advocates had hoped that the Jones case would provide the first-ever DNA exoneration of an executed person. While quite a few death penalty cases have been called into question, including several in Texas, no executed prisoners have been proven innocent by DNA testing, widely considered the most reliable form of forensic evidence.

Instead, Jones' case now falls into the category of a highly questionable execution—a case that may not have resulted in a conviction were it tried with modern forensic science. In that respect, it's much like the case of Cameron Todd Willingham, executed in 2004 for starting a house fire that killed his three children. Fire scientists now say the arson evidence used to convict Willingham was flawed. (The Forensic Science Commission will continue its investigation of the Willingham case at hearing on Nov. 19.)

Still, the revelations in the Jones case raise more questions about how Texas administers the ultimate form of punishment.
Jones was no innocent - he had a prior murder conviction and in this case the question was whether he was the shooter or the wheelman - but even if he were straight-up falsely accused, like Anthony Graves, I don't believe for a moment that executing the wrong person would magically turn the tide of public opinion against the death penalty. A recent national poll (pdf) found that more than 80% of the public already thinks an innocent person has been executed, and support for the death penalty is higher than ever.

Even so, here's another case where forensic methods portrayed to jurors as reliable in reality were not. Left up to jurors without minimum safeguards or even definitions regarding what constitutes evidence beyond a reasonable doubt, inference too often qualifies as evidence. And gubernatorial clemency - even when stays or pardons are recommended by the Board of Pardons and Paroles -  doesn't happen often and fails to provide adequate remedy for false convictions.

Since Jones is dead, the only way to benefit from re-vetting the facts of the case will come from whatever steps are taken to ensure similar errors don't recur. So what are the takeaway lessons here?

For starters, non-DNA hair comparisons take a big hit: Crime lab analysts matched the hair to a defendant when it really came from the victim, for whom they would/should have had comparison samples. This makes me wonder if all the hair analysts who reviewed the sample universally agreed on the match? Recently I wrote about how fingerprint examiners at DPS do not reveal in their final report when multiple examiners reached different conclusions about fingerprint matches. Later it was pointed out to me (by somebody who'd probably rather remain nameless) that other comparative forensic disciplines at DPS - from tool marks to hair analysis to ballistics - all use the same process of having a second examiner verify results, with supervisors meeting with analysts to reach a conclusion in the event the two disagree. Those disagreements, according to that source, historically aren't recorded in other forensic reports either. So the Brady concerns, in other words, go beyond just DPS' fingerprint division. Given the egregious error - mismatching the victim's hair to a defendant - one wonders if all the analysts on the case concurred,  or if disagreements were just glossed over when the final report was written?

Beyond that, the folks preparing then-Gov. Bush's clemency recommendations failed to tell him about the request for DNA testing. As Sen. Ellis points out, that's a significant oversight. Clemency has never been a big focus of Texas governors in my adult lifetime, but its denial shouldn't become so pro forma that staff doesn't even bother to adequately brief each case.

Finally, once again we see the results of informant testimony allegedly secured through threats from prosecutors. According to Time magazine, "The prosecution's star witness against Jones was a friend of [his alleged accomplice] who later said that prosecutors had coerced him into testifying." Of course, coercion of a witness by prosecutors is also the main cause of the false conviction in Anthony Graves' case. I haven't read the trial transcript, but I wouldn't be surprised if the informant testimony were as big a factor in Jones' conviction as the flawed forensics.

Usually when someone is convicted of something they didn't do, there's not just one error that caused it but multiple, usually well-intentioned sources of error that come together to collectively generate a false conviction. That's not to make excuses for avoidable errors, only to argue in favor of tweaks to the system that would help avoid more of them in the future.

MORE: From Stand Down and Texas Coalition to Abolish the Death Penalty. ALSO: See the national Innocence Project's web page on the Claude Jones case.


Ryan Paige said...

I'm reminded of the Johnny Frank Garrett case out of Amarillo. Garrett was convicted of raping and murdering an elderly nun on Halloween morning in the early 1980s.

One piece of evidence was a pubic hair recovered from the scene that was said to be "microscopically consistent with" Garrett's pubic hair.

When cross examining Garrett in court, the prosecuting attorney treated that hair as if it was impossible that it came from anyone but Garrett, and he asked Garrett to explain how his pubic hair ended up at the crime scene.

If I was on that jury and heard the experts and the prosecutor say that the hair was a rock solid match, I can't imagine voting for anything other than guilty.

Certainly that hair might well have belonged to Garrett, but the testing of the time never allowed for that kind of rock solid, 100% match, regardless of what experts from the time or prosecutors of the era claimed.

Don said...

It's hard to understand that most Americans acknowledge that we have probably killed innocent people, yet their support for the death penalty is unwavering. Is this the "well, an occasional innocent is the price you pay to get as many guilty ones as you can" mentality? I have actually heard this said. It kinda makes me sick.

Hook Em Horns said...

Won't change a damn thing in Texas.

Anonymous said...

'fraid Hook-em's right.
Rev. charles

Anonymous said...

Don, like the folks in Connecticut who just gave a death sentence to that cruel bastard who killed that family, there are plenty of folks in Texas who remain convinced (and rightly so) that there are some criminals who are so demonstrably evil that they "just need killin'." The fact that innocent lives are lost in plane crashes periodically doesn't mean we need to ban commercial air travel, does it?

Anonymous said...

It might if the airline industry required methodically killing its passengers every once and awhile to continue functioning, 2:28.

Paul Walcutt said...

@ Anon 3:01 -

Game. Set. Match.

Cheri Ledbetter said...

Hey 2:28...perhaps if we were strapping your kid or better yet YOU to the gurney at the Walls, you just might be changing that stupid airline comment.

IF we kill even one innocent man I strongly believe it is grounds to abolish the death sentence in Texas and all other states. Life without the possibility of parole is much, much worse, especially in Texas.

This state looks like a bunch of morons...faulty forensic hair evidence and then, least we forget, faulty forensic fire evidence in the Willingham case.

Anonymous said...

Okay 2:28. Let's use your airline analogy. What's going on in Texas is like there have been some plane crashes, and we have some ideas as to what the causes are, but we choose to do absolutely nothing to fix those problems, thereby guaranteeing that more people will die in plane crashes that could have been prevented.

Are you saying, 11:28, that there is no need to investigate plane crashes? Is there no need to try to prevent plane crashes? If there is a particular problem in the maintenance or operation of airplanes that has led to crashes should we just ignore the problem and let you and your family be exposed to the risk? That's what is going on in the Texas criminal justice system. We have identified, known problems that lead to wrongful convictions, yet those so intent on defending the death penalty, at all costs, advocate ignoring those problems and continuing to incarcerate and possibly execute the innocent.

Even if you believe in the death penalty, you shouldn't believe its ever okay to execute the innocent. I personally don't have a problem with the concept of the death penalty. I agree, there are some who deserve it. But, I don't believe its ever okay to execute someone who is innocent.

Some complain about the anti-death penalty "zealots". Many of them are just pro-death penalty "zealots". While I'm okay with the concept of the death penalty, I'd be okay with a moratorium on it until the system is reformed. The pro-death penalty "zealots" will defend it no matter what the costs. When someone, motivated to protect a seriously flawed system, can say they are okay with a few innocents being executed, that's just warped. That's the type of person that needs to be locked up because they are truly a danger to society. I think its okay to believe in the death penalty, but to be a "zealot" about killing anyone is just disturbed. To be okay with the killing of innocents is beyond disturbed and indicates a serious psycopathology.

tsj said...

On average, excluding Texas, states exonerate 14% of their death row inmates before they kill them. Texas exonerates only 2%. Assuming that Texas simply executed those 12% rather than exonerated them, that indicates Texas has wrongfully executed around 54 innocent people.

At I'm reviewing all Texas executions to see if I can identify anywhere near 54 wrongful executions in Texas. I'm not counting low IQs, youth, or "only an accomplice" as wrongful executions. I'm looking for actual innocence. I don't think I'll identify 54, but I now expect I'll identify 3 to 4 dozen.

Latest case I reviewed was Frances Elaine Newton. I scored her as having a 91% chance of actual innocence. With respect to Cameron Todd Willingham, see my book The Skeptical Juror and The Trial of Cameron Todd Willingham for a thorough telling of events leading up to his execution.

DEWEY said...

The crime and death penalty gods MUST be appeased with human sacrifices in Texas.

Don said...

I mentioned that I had actually heard some people say that it was ok to kill a few innocents in order to get the guilty ones, and I'll be damned if 2:28 didn't verify it. Even I thought that mentality was rare. Well, I didn't think it was rare; I just thought it was rare that someone would admit it. Incredible!!

Anonymous said...

You can't bring the dead back to life. However, a faulty conviction means that the DA's office was reckless, and derelict in their duties. As such, they need to pay damages. I agree that money can't bring back an innocent life, but if you sock it them enough times for damages, it will make them think twice about the possibility of executing an innocent man.

Incidently, they do strive hard to prevent airplane crashes. Even to the point that some of the requirements and regulations go far beyond reason, and actually overlook the simplest causes.

Anonymous said...

10:11 brings us back around to the issue of prosecutorial immunity. Its time for either the courts or the legislature to take a seriously look at scaling prosecutorial immunity back. If you don't support that, then at least admit that the state bars need to start aggressively disciplining prosecutors who abuse their power. Some of what we've seen even rises to the level of criminal behavior.

As long as there is no accountability for prosecutors, this behavior will continue. Absolute immunity corrupts absolutely.

Anonymous said...

I do wonder how many of you bleeding hearts, who constantly get all worked up into a lather over the possibility that our capital punishment system may have inadvertantly executed an innocent person, have no problem with the notion of abortion? How many of those "innocents" are executed annually in this country? What say you, hypocrites?

Anonymous said...

And vice versa, 12:02 - how many anti-abortion types could care less if an innocent person is sent to death row?

Hook Em Horns said...

Abolishing the death penalty will not fix the massive criminal justice issues that Texas faces. It is only part, but a very big part, of a much bigger problem.

My problem with the Death Penalty is not the penalty itself but the system which is rooted in malfeasance, liars and cheats that send people there.

To say I have -0- confidence in our justice system is an understatement. Granted, a lot of guilty people are convicted and sentenced but a lot of people who are not guilty get caught up in the net for a myriad of reasons.

I have a feeling that every single Texan, if they were standing in a courtroom, would have a different opinion.

Those farthest from the system defend it blindly. Those close to it question it unceasingly.

Anonymous said...


It really shows someones ignorance when they assume, based on a comment on a blog post, that they know all about the persons views on other subjects. You, like many people, assume that someone who holds a position on one subject that you disagree with must hold certain views on other subjects. That shows a lack of intellectual capacity on your part.

This post has nothing to do with abortion. Just because someone has a problem with the state executing innocent people doesn't mean they hold any certain political views on other subjects, right or left. Assuming that shows your ignorance and narrowmindedness. Furthermore, it seems that you are applying that all "conservatives" are perfectly okay with the execution of innocent people by the state. Do you really believe that just because you are that warped, that all conservatives are?

The pro-death penalty zealots never come on here and comment on the actual issue which is the serious flaws in the system that lead to wrongful convictions. Instead they come on here and try to change the debate to pro vs anti death penalty. Or, they try to turn it into a liberal vs. conservative debate. Personally, as a conservative, I am insulted that someone would insinuate that all conservatives are so warped that they are okay with the incarecration or execution of inncoent people. Don't conservatives believe in the constitution? What about due process? Someone who claims to be a conservative that doesn't believe in something as fundamental as due prcess, is not a true conservative. 12:02, your claim to be a conservative rings untrue. You are okay with a system that consistently violates the consitution. So, 12:02, you have demonstrated a lack of respesct for the constitution and the ideals on which the country was founded. Who's the hypocrite?

This pro-death penalty rhetoric and talk about abortion are similarly attempts to distract from the real issue by people who lack the intellectual capacity to debate the real issue. The real issue is wrongful convictions (whether in capital cases or non-capital cases). But, those of lower intellectual ability will continue to come on hera and slam all of us "bleeding heart" liberals who believe in such extreme concepts as justice, fairness and due process.

Texas Moratorium Network said...

The Texas Forensic Science Commission has rescheduled its next meeting on the Willingham case for January 7 in Austin.

January 7th, 2010 - Willingham Expert Panel

Central Services Building - 1711 San Jacinto Blvd., Austin, TX 78701 - Room 402

Anonymous said...

I love how all of you "do gooders" carry on about "improving the system." Do you think the rest of us are stupid? All you really want to do is make it so expensive to obtain the death penalty that there will be a de facto moratorium. I hate to tell you this, but there will always be another Kenneth McDuff who will come along who will galvanize public opinion in this state in FAVOR of the death penalty. Barry Scheck and his liberal buddies can whine all they want about Willingham, etc., but at the end of the day there are some genuinely mean, evil bastards in this state who the public wants to see die for the pain and suffering they've caused. That crap about life in prison being worse is pure hogwash. If it were, you liberals would spend more of your time whining and protesting about that. Scheck and his abolitionist buddies would be better served spending their time in California or New York where people want to "understand" violent killers rather than hold them accountable for their actions. Thank God I still live in a state where people still feel that there are some crimes so terrible that the murderer should pay with his life. And judging by the results of the election on November 2nd, it appears that lots of others in this state feel the same way. As 3:18 above put it: Game. Set. Match.

Anonymous said...

5:27 You're just another moron who is too stupid to see the real issue here or you're too afraid to debate the real issue. Which is it?

It's morons like you that are going to end up getting the death penalty declared unconstitutional again. If you want to bury your head in the sand and deny that there are real problems with the system, don't be surprised when it bites you in the ass.

Anonymous said...

If an innocent person being incarcerated or executed is no big deal, lets see some of you death panalty zealots volunteer to go spend a few years on death row. Of, how about sending your father or son to spend a few years on death row. Anthony Graves and every other innocent person who has spent time on death row (and there have been more than a few) was somebody's son or brother. I know some of you arrogant sobs think it could never happen to you or anybody you care about, but what if you're wrong? What if tomorrow your father, brother, son, or you, happen to be in the wrong place at the wrong time. It's happened to others, it could happen to you.

Its really sad. There are so many churches in Texas, so many so called Christians. Yet, some of those same people who sit in churh on Sunday morning will turn a blind eye to injustice. I think its in Peter where the Bible talks about a difference between a true faith and a false faith. If your heart is so hard that the plight of the innocent, facing execution, doesn't move you, you can make no legitimate claim that Christ is in your heart. Think about that next Sunday while you're sleeping or daydreaming through the sermon.

Anonymous said...

5:27, I have a quesiton for you. Your logic is that in order to make sure the really bad people, like McDuff are executed, its necessary to allow an occasional innocent person to be executed. So, using that logic, lets say one of those innocents has to be a member of your family. Which one would you choose?

Anonymous said...

"a lot of people who are not guilty get caught up in the net for a myriad of reasons."

What does "a lot" mean exactly? How many times do you think a not guilty person actually gets convicted of a crime? 1%? 5%? 25%?

zeety said...

The airline industry has good reason to do everything it can to prevent deaths. The judicial system? No so much.

Anonymous said...

zeety said...
"The airline industry has good reason to do everything it can to prevent deaths. The judicial system? No so much."

The problem with the airline industry is that it does many things for "show" that do very little for safety. On the other hand, there are things they could do that would greatly improve safety, but they are too caught up in doings things for "show."

I sometimes wonder if the judicial system engages in the same thing.

Anonymous said...

8:29...Sadly, the Texas Forensic Science Commission is a prime example of a "show".

Anonymous said...

The original article does not make the claim that the hair examination was "faulty". In fact, it makes it clear that the hair examiner testified that the hair examination could not establish that a hair came from a particular person. In that sense, the hair examination is no different from the mitochondrial DNA analysis that was done. Neither test can establish that a sample came from a particular person. The most common mitochondrial DNA types are seen in about 8% of people. Both hair comparisons and mitochondrial DNA comparisons are exclusionary tests.

Anonymous said...

This is a follow-up by Anonymous @04:26:00 PM:

Grits says: "Crime lab analysts matched the hair to a defendant when it really came from the victim, for whom they would/should have had comparison samples."

Well, not quite. The mitochondrial DNA profile may have matched the victim, but that doesn't mean the hair came from the victim. The hair could have come from another person with the same mitochondrial DNA profile. That could be an unrelated person, or a related person such as a brother or a sister, or a maternal cousin. There is no way to conclude based on the DNA only that the hair came from the victim.

Anonymous said...

Does this mean that all the work performed by the hair analyst is retro-analyzed for the possibility of identical mistakes? Maybe he, as well as other hair analysts in the lab, were trained incorrectly (i.e. systemic problem)...