Wednesday, July 18, 2012

Texas should conduct review of hair and fiber forensics comparable to feds

Excellent news for those concerned with the lack of rigor in certain forensic science disciplines, this time hair and fiber analysis. The Washington Post reported last week ("Justice Department, FBI to review use of forensic evidence in thousands of cases," July 10) that:
The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

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.
The review comes after media reports alleging that the agencies had known of flawed hair and fiber analyses and covered it up. Here's a little more detail
The Post reported in April that hair and fiber analysis was subjective and lacked grounding in solid research and that the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate. But bureau managers kept their reviews limited to one agent, even as they learned that many examiners’ “matches” were often wrong and that numerous examiners overstated the significance of matches, using bogus statistics or exaggerated claims.

Details of how the new FBI review will be conducted remain unclear. The exact number of cases that will be reviewed is unknown. The FBI is starting with more than 10,000 cases referred to all hair and fiber examiners. From those, the focus will be on a smaller number of hair examinations that resulted in positive findings and a conviction.

It also is unclear whether the review will focus only on exaggerated testimony by FBI examiners or also on scientifically unfounded statements made by others trained by the FBI, or made by prosecutors. Also unclear is at what point government officials will notify defense attorneys or the Innocence Project.

In past reviews, the department kept results secret and gave findings only to prosecutors, who then determined whether to turn them over to the defense.
To my knowledge the FBI has only done this one other time, and then they didn't do it very well, and certainly not quickly: When actual science demonstrated that FBI experts had been falsely claiming for years that they could differentiate bullets by their lead content (e.g., "this bullet came from the same batch at the factory as the ones found in the possession of the defendant"), they had to retract the testimony and systematically identified every case in which it'd been used, leading to several cases being overturned.

But lead-content testimony was relatively uncommon: The number of times it was used at trial ran to less than 200. Hair and fiber analyses have been much more common for much longer and done at labs across the country, not just at the FBI. Will other crime labs now begin similar reviews? There's no requirement they do so, and really no process for it.

Texas, to its credit, in some ways pioneered the concept that old cases need to be comprehensively reviewed when forensic errors are found. The watershed moment perhaps was Dallas DA Craig Watkins partnering with my employers at the Innocence Project of Texas (IPOT) to review old DNA cases and recommend which ones deserved testing, a process that led to numerous high-profile exonerations and landed Watkins a feature on 60 Minutes and other national acclaim.

Similarly, the Forensic Science Commission and State Fire Marshall have partnered with IPOT to review  arson cases of people currently incarcerated in TDCJ for errors that may have led to false convictions. And after incompetent drug analysts were discovered in El Paso and at a DPS lab in Houston, the agencies systematically notified defense counsel. After the incident in Houston, the DA's Association recommended that "For any case with a bad retest, or cases with now-destroyed evidence, [prosecutors should] request that the court appoint an attorney to take the case through a writ process if appropriate."

Still, though, that's happening only on an ad hoc basis. Fort Bend Sheriff's Deputy Keith Pikett for years used highly suspect techniques in "scent lineups" which Texas courts have now disavowed. Even so, Pikett claimed to have performed scent lineups with his dogs in more than 2,000 cases and testified in court many times, but there's been no official review - by the Fort Bend Sheriff, the Texas Attorney General, the Forensic Science Commission (outside their jurisdiction), or anyone else.

In this case, analysts from Texas crime labs including at DPS testified for years about hair and fiber evidence in similarly overstated ways as the FBI, recently reining in the language they use in court and relying more where possible on much more accurate DNA evidence. Pretty much everybody agrees such overstated analyses were both problematic and used for a long time. But there's no state-level review of hair-and-fiber testimony in past cases comparable to what's happening at the FBI, neither here in Texas nor to my knowledge in other states, even though it's obvious the same issues extend far beyond FBI analysts.

Grits has long insisted there needs to be a mechanism - arguably at the Forensic Science Commission, with expanded jurisdiction - for reviewing old cases when the science behind long-used forensics are called into question or debunked. We're starting to do that when new forensic errors arise, but for the most part haven't addressed the lingering old ones like flawed or overstated hair and fiber testimony. It's time to start.

See prior, related Grits posts:


HOT attorney said...

The Court of Criminal Appeals may have the ability to set up or mandate a review process since the cases in which the flawed analyses were used are within their jurisdiction. They have the power to adopt court rules and could do so to require DAs to show that the review had been completed with an open process with participation by other counsel and experts, before allowing further expert testimony in court. Should have a delayed effect to allow time for the review and not let it interfere with current cases.

dm9871 said...

Hey Grits, a decade ago I looked at the transcript in the McDuff case. The testimony of the hair microscopist wildly exaggerated the meaning of the tests he performed. That would be a good place to start.

David Harris, U. Pitt Law said...

You're certainly right -- it's way past time for comprehensive review of these kinds of bogus forensic science conclusions. Every state, not just the feds, should be doing this.

David Harris, U. Pittsburgh Law