In early May, Mississippi officials were a mere four hours from executing a potentially innocent man, Willie Manning when the state’s Supreme Court stepped in with an 8-1 ruling that halted the execution.
A key part of the prosecutor’s original case was forensic evidence that would tie Mr. Manning to the murder. However, on May 2, 2013, “, the Justice Department has sent three letters to the attorneys in the case announcing that the feds now are backing away from the “ballistics” and “hair fiber” testimony their so-called “expert” testified about at Manning’s trial. State prosecutors heavily relied on that now-discredited evidence at trial — as have state court judges ever since — as proof that Manning’s conviction was secure enough to warrant his execution.”
Without that analysis, there is no physical evidence linking Mr. Manning to the 1992 murders of two Mississippi State University Students.
Now the Washington Post this week comes forward with a chilling report that the Justice Dpearrtment has launched an “unprecedented” federal review that has “uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony.”
The final results of their review will be disclosed later this summer, but already the scope is staggering.
“The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined,” the Post reports.
The review commenced last July by the FBI and the Justice Department, in conjunction with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).
Last year, the Post reported that “authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people.” However, until now officials had not aggressively investigated these problems or notified defendants.
The Post reports, “At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.”
“Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification,” the article continues. “However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.”
The FBI intends to disclose problems in capital cases even if the defendants has already been executed, which brings up the chilling possibility that an innocent has fallen prey to a wrongful conviction and executive.
“We didn’t do this to be a model for anyone – other than when there’s a problem, you have to face it, and you have to figure how to fix it, move forward and make sure it doesn’t happen again,” FBI general counsel Andrew Weissmann said.
“One of the things good scientists do is question their assumptions. No matter what the field, what the discipline, those questions should be up for debate,” David Christian “Chris” Hassell, director of the FBI Laboratory said. “That’s as true in forensics as anything else.”
For years however, critics and investigative journalists have noted the lack of scientific underpinnings for forensic tests testified to in trial.
For instance, investigators have often testified to matches of tool marks and striations on guns. However, further research has shown, “Marks or “striations” on bullets are not necessarily unique to a specific firearm, and visually matching them can be subjective.”
Hair and fiber are often used as evidence as well. “Hair sample characteristics such as color, shaft thickness and length are compared to hairs from a known source. Fibers from clothing, carpet, rope, etc., are analyzed to determine type of material and environmental exposure.”
However, research has noted, “Hair and fiber cannot be identified to one source. Hair comparisons must be confirmed by mitochondrial DNA analysis.”
While the officials scurry to determine the extent of the problems, advocates for innocent projects are calling this a watershed moment in the struggle as the police and prosecutors are suddenly willing to re-examine old cases based on potential scientific efforts.
Peter J. Neufeld, co-founder of the Innocence Project, told the Post that the review was “historic” and a “major step forward to improve the criminal justice system and the rigor of forensic science in the United States.”
Norman L. Reimer, executive director of the NACDL, also praised the effort, predicting that it would have “an enormous impact on the states” and calling on the defense bar to represent indigent convicts.
“That’s going to be a very big job as this unfolds,” said Mr. Reimer.
“The response has been notable for the department and the FBI, which in the past has been accused of overprotecting its agents,” the Post reported. ” Twice since 1996, authorities conducted case reviews largely in secret after the scientific integrity of the FBI Lab was faulted.”
FBI cases may represent only the tip of the problem, the Post notes.
“While the FBI employed 27 hair examiners during the period under review, FBI officials confirmed for the first time this week that records indicate that about 500 people attended one-week hair comparison classes given by FBI examiners between 1979 and 2009. Nearly all of them came from state and local labs,” they write. “State and local prosecutors handle more than 95 percent of violent crimes.”
“It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues,” the Washington Post reports. “The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty.”
—David M. Greenwald reporting
“”Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification,” the article continues. “However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.”
I find this tendency to be willing to blindly accept “expert” testimony over a more evidence based approach to be more widespread throughout our legal system from the police though the judicial system through the penal system than we would like to believe. I had the recent opportunity to discuss “evidence based” profiling with a local law enforcement official who essentially argued that it was necessary for the police to go on the basis of their training and gut feeling rather than any statistical analysis of data because the latter was “too complicated” and that statistics can be interpreted differently depending on your point of view. This was spoken in all sincerity as though one’s “gut feeling” and the interpretation of one’s trainers was not equally if not more subjective and dependent on point of view.
To me it is appalling if not outright incompetence that the defense and or the judge did not forcefully stress to the jury the demonstrated lack of certainty inherent in these types of analysis as soon as this was known. And worse yet, incompetence and/or malfeasance on the part of the “expert” witnesses and the prosecution for putting forth evidence that they either knew, or should have known had severe limitations as though it was certainty.
It’s appalling but not surprising, Medwoman. Look at the state of indigent defense – overworked attorneys with lack of resources – and it’s a recipe for disaster and the area of forensic analysis is a key area where you need competent defense and the ability to bring in experts in order to properly defend someone.