Tuesday, January 14, 2014

Texas' review of faulty hair and fiber forensics underway

Jordan Smith at the Austin Chronicle has a brief story (Jan. 13) on the review of potentially faulty forensics in older cases using hair microscopy before the advent of DNA, a topic addressed at last week's quarterly Texas Forensic Science Commission. It opens:
The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.

Texas' planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers.

Many of the Texas' hair examiners were trained by the FBI, so the state review makes sense, according to the Innocence Project of Texas, which is among the stakeholders collaborating with the FSC on the review. Indeed, the FSC noted this in its most recent annual report. "The FBI has also indicated that it trained many microscopic hair analysts in state and local crime laboratories, including some laboratories in Texas," reads the report. "Of course, this does not necessarily mean that state and local analysts made similar [scientific] overstatements" as did the FBI analysts at issue in the federal review. Still, as it is with that review, Texas' inquiry will focus on older cases, because microscopic hair analysis was more common in the 1980s and 1990s, before the rise of DNA testing. ...
Twenty labs across the state do hair analysis, FSC general counsel Lynn Robitaille Garcia told the commissioners, including 12 Department of Public Safety labs and eight additional public labs (generally county or police department crime labs). The labs are currently in the process of going back and "identifying hair cases" to submit for possible review, she said. So far, four labs – including the Southwestern Institute of Forensic Sciences in Dallas and the Bexar County lab – have supplied lists of cases, she said, totaling "a few dozen" where "positive association" was made between a defendant and crime scene evidence. Garcia said a database review of appeal court decisions that mention hair analysis yielded a list of some 85 cases. Those cases will be sorted by jurisdiction and supplied to county prosecutors and to participating labs to help them cull through relevant records.
My colleague Nick Vilbas from the Innocence Project of Texas told the FSC that, so far, they've identified 20-25 names out of those 85 cases who've contacted IPOT in the past requesting help to prove their innocence, and they haven't finished vetting the list. Without exculpatory DNA evidence, there was little IPOT could do for those folks in the past. But between the FSC review and Texas' new junk science writ that became law September 1st, the landscape has changed. So there's a decent chance this undertaking may result in viable innocence claims and future exonerations, though right now the process remains in the early stages.

Between changes to the habeas corpus statute, the new focus on hair-and-fiber analysis and the ongoing arson review, Texas has lept to the forefront nationally among states confronting junk science that may have resulted in wrongful convictions. Not many years ago, it would have been hard to envision the day when one could say that with a straight face, but there it is.

See related Grits posts:


Anonymous said...

What was the criteria given to the crime labs for vetting of old cases where "positive identification" of hair analysis was used? Was this limited to the pre-accreditation date?
And, does this include cases that were plea bargained whereby a potentially incorrect "positive identification" was stated within the lab report (i.e. no testimonial cross-examination of the scientist)?

Gritsforbreakfast said...

This did not include plea bargains - at least so far - only cases that went to trial.

I don't immediately know about other criteria.

Anonymous said...

The one criterion for labs is a probative association. That might be hair from victim/scene matched to suspect, or hair from suspect matched to victim. There is no time frame limitation. While the focus of the review is testimony, laboratory records don't necessarily provide an reliable indication of whether a case was tried or pled. So both types of cases will end up being available for review. Overstated conclusions in reports would be potentially as problematic as overstated testimony.

Anonymous said...

To anony 9:39-

You sound official. Do you have the official memo sent from the TFSC to the crime labs with all the important info?

Anonymous said...

rLet's guess. The cases to be be vetted, in order of "importance", will be:

1. Cases in which the totality of the evidence against the defendant -- disregaring the erroneous hair analysis "positive identification" scientific lab report -- will still maintain a conviction (the "harmless error" initiative).
2. Cases whereby defendants were executed by the State, died while in custody of the State, or served their sentences but have since died; thus, no civil penalties to be paid by the State.
3. Cases which occurred prior to Texas accreditation laws; thus, ASCLD/LAB and DPS can't be blamed for improper crime lab oversight in civil litigation.
4. Cases in which the hair comparison analyst is no longer alive and/or no longer working at the crime lab (aka the "bad apple" initiative); thus, the "bad apple" will never be questioned regarding training or working expectations at the crime lab. Also, the State crime lab can not be blamed in civil litigation.
5. Cases in which the Prosecutor who elicited the testimony of the "bad apple" (i.e. failed to seek the truth through proper rigorous direct examination) is no longer alive and/or working for the State; thus the current DA's Office can not be blamed in civil litigation. For those Prosecutors still practicing, disciplinary actions will be shirked and dismissed by the unaccountable Texas State Bar.
6. Cases in which none of the above apply, but the trial Defense Attorneys (still alive and practicing) CAN be blamed for "ineffective assistance of counsel". Again, disciplinary actions will be mishandled by the Texas State Bar.
7. Cases in which all parties are still alive and practicing, but all agree not to say anything to the defendant or the public.