Thursday, July 18, 2013

Federal hair microscopy review should be replicated at state level

At last week's Texas Forensic Science Commission Roundtable (an event co-sponsored by the Court of Criminal Appeals' Criminal Justice Integrity Unit), presenter Norman Reimer from the National Association of Criminal Defense Lawyers offered a preliminary discussion of a project publicly announced today - a joint review between the US Justice Department, the national Innocence Project out of New York, and the NACDL of cases where potentially flawed microscopic hair analysis may have been introduced as evidence and produced false convictions. According to Reimer, out of 310 DNA exonerations nationally, 72 of them (23%) included faulty microscopic hair analysis, often layered on top of other flawed evidence as corroboration. I'd not seen that figure, but it's repeated in the press release below. That would make hair microscopy perhaps the most significant source of forensic science error in DNA exoneration cases. You can imagine that, layered on top of a mistaken eyewitness, such forensic corroboration could be very powerful testimony.

Unfortunately, this partnership will only review cases prosecuted in the federal system. However, there are many technicians at the state and local levels, most if not all of whom were taught by the same trainers as the FBI, said Reimer - whose cases won't be included in the federal review. Indeed, so far the working group doesn't even have a list of state and local technicians who the FBI trained on microscopic hair analysis. Once those names are available - and please, somebody involved in that project let's make that happen! - then states can begin conducting their own reviews of flawed testimony in state-level criminal cases, which are likely far more numerous and may have continued to be used in cases beyond the year 2000 when DOJ abandoned the technique in favor of DNA analysis.

Perhaps the Forensic Science Commission needs a formal complaint to stick its nose into this business, though arguably the bill that just passed expanding their jurisdiction (SB 1238 by Hinojosa) would allow them to investigate of their own accord after September 1st. Either way, the federal review won't get to cases in state district court and the FSC seems uniquely positioned to launch a parallel review of hair microscopy in state-level cases.

MORE: From the Washington Post, "the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases." AND MORE: From the Wall Street Journal.

Find the full text of a press release announcing the federal review below the jump:

Innocence Project and NACDL Announce Historic Partnership with the FBI and Department of Justice on Microscopic Hair Analysis Cases

Government Agrees to Notify Defendants of Error, Waive Procedural Arguments and Offer Free DNA Testing

(Washington, DC – July 18, 2013) Today the Innocence Project, the National Association for Criminal Defense Lawyers (NACDL) and its partners announced a groundbreaking and historic agreement with the FBI and the Department of Justice (DOJ) to review more than 2,000 criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence.    The agencies agreed to undertake the review after three men who had served lengthy prison sentences were exonerated by DNA testing in cases in which three different FBI hair examiners provided testimony which exceeded the limits of science and contributed to their wrongful convictions.  The review will focus on specific cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid.

The Innocence Project and NACDL have collaborated on this important matter with its pro bono partners, David Koropp, a partner at Winston & Strawn LLP and his colleagues; along with Michael R. Bromwich, Managing Principal of The Bromwich Group and Partner at Goodwin Procter LLP, who served as the Inspector General of DOJ from 1994-1999. The Innocence Project, NACDL and its partners have worked closely for over a year with the FBI and DOJ in determining the scope, protocols and implementation of the review that will cover more than 2,000 cases that were processed by the FBI between 1985 and 2000, as well as an unknown number of cases that were processed in preceding years. The review covers cases in both the federal and state court systems.

Because of the importance attached to these cases, the DOJ has agreed, for the first time in its history, not to raise procedural objections, such as statute of limitations and procedural default claims, in response to the petitions of criminal defendants seeking to have their convictions overturned because of faulty FBI microscopic hair comparison laboratory reports and/or testimony. This agreement will help ensure that defendants will not have any wrongful conviction claims dismissed before being reviewed by a court on the merits. The government also agrees to directly notify the defendants and their lawyers in cases where an error is identified and to offer free DNA testing in the cases where an error was identified in the analysis or testimony and there is either a court order or a request for testing by the prosecution.

“The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarilylarge number of cases is truly unprecedented.  It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.  “Unfortunately hair analysis is only one of many flawed forensic practices that are still used that pose the threat of infecting criminal trials across the nation.  We need leadership in Washington to ensure scientific rigor and greater oversight over forensics to prevent these miscarriages of justice.”

“We hope that the actions taken by the FBI and DOJ will serve as a model for state law enforcement and crime laboratories throughout the country to respect ethical obligations to reverse wrongful convictions when learning about improper evidence,” said Norman Reimer, Executive Director of  NACDL.

Before DNA testing was used in criminal trials, prosecutors throughout the country routinely relied on microscopic hair comparison analysis, often provided by the FBI, to link a criminal defendant to a crime. The practice was deemed “highly unreliable” in the 2009 National Academy of Science report on forensic science, Strengthening Forensic Science in the United States: A Path Forward.  As part of the agreement announced today, the agencies acknowledge that there are significant limitations on the probative value of hair analysis because “the size of the pool of people who could be included as a possible source of a specific hair is unknown.” The agencies further have agreed that “an examiner report or testimony that applies probabilities to a particular inclusion of someone as a source of a hair of unknown origin cannot be scientifically supported.”

“It is possible to conduct hair microscopy and find similarities among various samples.  But it appears that in many cases the FBI analysts were overstating the significance of these similarities, often leaving juries with the false impression that a hair recovered from the crime scene must have come from the defendant and could not have come from anyone else,” said Neufeld. “The government is now acknowledging that this was wrong and that the science does not support such conclusions.”

The FBI was motivated to conduct the review after three men, Donald GatesSantae Tribble and Kirk Odom, were exonerated by DNA evidence in three separate cases where different FBI analysts had provided scientifically invalid testimony.  The exonerations were secured by the Public Defender Service for the District of Columbia. In each of these cases, the FBI analysts’ testimony over stated the probative value of the evidence. The three men each served more than 20 years before they were exonerated.  More broadly, the Innocence Project has already identified that 72 of the first 310 wrongful convictions overturned by DNA evidence involved faulty hair evidence. Over the course of 25 years, the FBI conducted a two-week training course that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI’s examiners had used in lab reports and trial testimony. As a result, it is likely that audits similar to the FBI’s will be necessary in most states.

Under the agreement, the FBI will review every case between 1985 – 2000 where the FBI conducted hair analysis and found a positive association between the hair evidence submitted for analysis and a known sample. So far the review has already uncovered more than 2000 cases that fit these criteria. For cases pre-dating 1985, the FBI will make best efforts to identify cases where such positive associations were found. For all the cases it identifies, the FBI will notify the law enforcement agency that initially requested the testing and make efforts to locate the trial transcript or any relevant information about the hair analysis, including in cases that resulted in a plea.  The FBI will then review the information to determine if the lab report or trial testimony was scientifically invalid.  The FBI will share its results with the Innocence Project and NACDL, which, with the assistance of Winston & Strawn LLP, will conduct its own independent reviews and share its findings with the FBI. In this process, capital cases, especially those where the defendant’s execution date has been set, will be assigned the highest priority.  The review will include cases where the defendant has already been executed.

"This review is something that prosecutors and defense lawyers alike should celebrate -- an unprecedented and massive effort by the FBI designed to identify historical cases in which flawed forensic evidence involving microscopic hair examination might have led to wrongful convictions,” added Bromwich.  “This review is an important landmark in bringing together the law enforcement and defense communities in pursuit of the shared objective of ensuring that only the guilty are convicted and that only scientifically valid forensic science is used in our criminal justice system."

The FBI and DOJ will notify the defendant, defense lawyer and prosecutor in each case where it is determined that there was error in the hair analysis evidence.  In addition, the FBI agrees to perform DNA testing of the relevant hair evidence in cases where it is ordered by the court or requested by the prosecution.

NACDL President Steven D. Benjamin said: “We are especially pleased that where the flawed evidence was admitted in federal cases the government has agreed to waive the onerous procedural bars that prosecutors often use to bar reconsideration. This will be critical to giving wrongly convicted people a fair chance at a fair review. We call upon the states to follow that lead. Justice demands no less.”

The Innocence Project, NACDL and Winston & Strawn LLP will work together to ensure that all criminal defendants who were convicted by faulty hair comparison analysis evidence receive representation to pursue relief.

“This review is an example of our judicial system at its best -- prosecutors and defense lawyers working together to see that justice is done,” said Koropp.  “Determining whether erroneous forensic evidence may have been used in criminal cases is vital to maintaining the integrity of our criminal justice system.   The FBI is to be commended for the leadership position it has taken to help ensure that only scientifically valid evidence is used to identify and convict criminal defendants.”


Anonymous said...

April 2013
Notification from the ASCLD/LAB Board of Directors to Interested Parties Concerning Potential Issues with Hair Comparison Testimony
"...We have an ethical obligation to 'take appropriate action if there is potential for, or there has been, a miscarriage of justice due to circumstances that have come to light, incompetent practice or malpractice.' (footnote) It is not ASCLD/LAB’s intent to direct that such reviews be conducted by any laboratory or judicial system but it is our recommendation that each laboratory, in consultation with the appropriate legal authorities, consider whether there may be past cases, specifically involving convictions, in which it would be appropriate to evaluate the potential impact of the reported conclusions and/or related testimony on the conviction."

What kind of weird logic is this? The "ethical obligation" and "appropriate action" for the accreditation agency is to do nothing. The crime labs are to clean up their own messes even though they might have been given the go-ahead by ASCLD/LAB accreditation.

Anyone still believe that accreditation is a GOOD thing?

Anonymous said...

2:58 -

As someone who has worked in crime laboratories before and after accreditation, I am definitely of the opinion that accreditation is a very excellent thing. Only people with no experience in the field would think differently, imho.

In this particular instance what ASCLD/LAB has communicated is exactly what they needed to communicate to laboratories under their accreditation. Review of these cases is not simply a laboratory function. Because the problem (identified in the FBI cases) was primarily an issue of overstated testimony, the review requires the cooperation of DAs in getting transcripts, reviewing transcripts, and committing to take action after the review. There is also a need to involve the defense community in the process to make sure all the relevant stake holders are represented.

ASCLD/LAB cannot mandate the cooperation of people outside the lab system. The letter that ASCLD/LAB circulated is the sort of official statement that a lab could effectively use to convince people outside the lab to start looking into the issue.

I spoke with Norman Reimer last week about how to begin getting the word out to the DA's that I work with regularly, and he gave me some good pointers. However, he also acknowledged that there is another problem that will not be addressed by these efforts. That is the problem of approriate testimony by hair examiners that is later overstated by prosecutors in their summations to juries, so that the jurors are left with the impression that the hair evidence was extremely strong and probative, when that is not at all what the hair examiner said in the original testimony. From what I've seen, this was a common prosecutor approach pre-2000. The review described doesn't even look at those sorts of cases.

Anonymous said...

"ASCLD/LAB cannot mandate the cooperation of people outside the lab system."
Agreed, but ASCLD/LAB should have copies of lab procedures and training manuals from those labs it accredits. They have an obligation to review those manuals and identify how/why/who might have been lead or trained to provide misleading testimony. The idea is to to identify the reasons why these hair examiners overstated their testimonies (excluding the pro-prosecution biases). It also might be a good lead for diving into the thousands upon thousands of testimonies to identify those hair examiners which might have been given incorrect or misleading information while working in the labs.

Anonymous said...

Scott, what does the IPOT have to say about this? Will they take on hair analysis like they did the state-wide arson investigations?

Anonymous said...

5:26 -

The vast majority of labs were not accredited prior to the federal mandate of accreditation (to receive federal funds) in about 2003 or thereabouts. Even for those laboratories that were accredited, ASCLD/LAB did not and does not archive procedure manuals. That is not the function of any accrediting body.

Most of the work that is being reviewed here is work that was done in the 1970's - 1990's. So long before accreditation became common, and long before most laboratories even started using detailed procedure manuals, at least to the standard used today.

The reason why errors were made is straight forward. The science was inadequate, and many people believed incorrectly that the evidence had greater statistical significance than it actually did.

The review process worked out by the FBI, prosecutors, and defense attorneys seems to be working reasonably well. There is no need to invent a new wheel at this point. In a nutshell the process is: for cases involving hair analysis that resulted in convictions/plea deals, 1) lab reports and testimony transcripts are reviewed to identify those where the significance of the evidence was overstated; 2) prosecutors and defense determine in which cases the hair evidence was dispositive or figured greatly into the conviction; 3) postconviction DNA testing is done to corroborate/refute the hair comparison results.

Again, the issue here isn't misconduct or negligence or mistraining, per se. Examiners, managers, attorneys, and the courts all generally understood that these microscopic comparisons were more meaningful than they actually were. The source of almost all the training (and procedures for that matter) was ultimately the FBI. Back before DNA most forensic work was justified by something along the lines of, "that was the way I was trained by the FBI". It was only after DNA that the FBI's strangle-hold on forensic science started to loosen.

Gritsforbreakfast said...

5:28, I don't really have much input on the legal decisions of the group (IANAL), but I'll bet they'd be willing, at least in theory; the wildcard would be limited resources, prior commitments, etc.. Would have helped if Chairman Pitts had kept the extra money in the budget for the university-based innocence clinics for just this kind of project.

Anonymous said...

At Friday's Forensic Science Commission meeting, the staff was instructed to send letters to Texas labs asking which ones did hair microscopy during the period in question and to assess whether any additional resources may be needed to help labs identify cases since many will be very old and difficult to track down.

That is certainly a first step toward assessing the situation at the state level here. I imagine any further collaborative review would follow from the initial assessment. IPOT was active in the discussion, but it may take more resources than just IPOT--like TDCAA, TCDLA and the State Bar--to work through the cases depending on the volume.

2:58 and 5:26--thank you for sharing a clear explanation of ASCLD-LAB's role and the timing of all this. Your comments are right on point from where I sit.

Anonymous said...

Correction--I was referring to the person who provided responses to 2:58 and 5:26 in that last comment.

Anonymous said...

I just read that the FBI will concentraite on defendants from broken homes with at least one step father and having Red hair at time of arrest. Not the orangish Red, the fire engine Red. Everyone knows that they are the first to be beaten.

Let the Picking & Choosing begin (or continue).

Anonymous said...

We have to start somewhere and yes, this is a good thing due to being unprecedented and all, but having a so -called 'Roundtable' that only points to Hair vs. ALL EVIDENCE collected and submitted is equal to a 'win - win' with a questionable victory to be celebrated by a select few of the nations wronged community and the folks making a living off it / them.

At this rate, we should have about 5 or 6 more Roundtables before we get to the Non-DNA, Non-Death Row related victims of the system. You know, the humans (cases) that were arrested on non-extent outstanding traffic warrants (yet highly verifiable then & now), placed in live line ups and positively picked out by crime victims. Despite having nothing in common with the original description provided & multiple alibis witnesses, detectives shown to knowingly & willingly have sought charges. Now labeled as a Defendant pleading Not Guilty and attending their own felony jury trial only to be advised to stop it based on being - Guilty or Not, they were going to prison just for being on probation at time of arrest.

Poof! Welcome to the 97% Club, we are accepting applications as fast as they can cross out Not Guilty and write under it - No Contest / Nolo Contendere.

Anonymous said...

Flawed or Prepared Testimony - Flawed or Faked Evidence. Organized Police & Prosecutorial Criminal Activity re-worded as simply business as usual or "Misconduct", and now a panel with a preset limited vision and direction steps in 310 'selected' DNA only cases later.

Can't wait for the limited results.