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.