Over the course of more than two decades prior to 2000, most of the examiners in an FBI forensic unit gave flawed testimony in most of the trials in which they offered evidence against criminal defendants, the Washington Post reported Sunday.
In 268 trials reviewed so far, 26 of the 28 examiners with the FBI Laboratory’s microscopic hair comparison unit overstated evidence that favored the prosecution more than 95 percent of the time, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project. Now the FBI and Justice Departments have formally admitted to this grave miscarriage of justice.
The flawed testimony had devastating impacts on many of the defendants. At least 32 were sentenced to death. Fourteen have been executed or died in prison. Prosecutors and the affected defendants have been notified in case there are grounds for appeals. Four defendants have already been exonerated.
The FBI has identified roughly 2,500 cases for review in which a hair match was made by the FBI lab. In fact hair analysis and “definitive matches” are a lot more subjective than was claimed. The Justice Department and FBI said in a statement that they “are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI are committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science.”
After federal authorities launched a federal investigation in 2012, FBI experts were found to have used incomplete or misleading statistics during testimonies in which they testified that hairs found at crime scenes were near-certain matches to defendants. Hundreds of potentially innocent people may have been wrongfully convicted as a result of these testimonies from cases that date back to the 1970s.
Issues with misleading hair analysis isn’t new, but the scale of the new admissions is. In 2002, the FBI admitted that its experts reported false hair matches more than 11 percent of the time. In Washington, DC, three of seven defendants whose trials included flawed testimony have been exonerated since 2009. Other courts have exonerated two other men. All of the exonerated had served 20 to 30 years prison time on rape and murder convictions.
As The Post reports, correcting the problem may be harder than admitting it, since it relies on local judges and prosecutors’ and defense lawyers’ willingness and cooperation:
University of Virginia law professor Brandon L. Garrett said the results reveal a “mass disaster” inside the criminal justice system, one that it has been unable to self-correct because courts rely on outdated precedents admitting scientifically invalid testimony at trial and, under the legal doctrine of finality, make it difficult for convicts to challenge old evidence.
“The tools don’t exist to handle systematic errors in our criminal justice system,” Garrett said. “The FBI deserves every recognition for doing something really remarkable here. The problem is there may be few judges, prosecutors or defense lawyers who are able or willing to do anything about it.”
Federal authorities are offering new DNA testing in cases with errors, if sought by a judge or prosecutor, and agreeing to drop procedural objections to appeals in federal cases.
However, biological evidence in the cases often is lost or unavailable. Among states, only California and Texas specifically allow appeals when experts recant or scientific advances undermine forensic evidence at trial.
So far, the FBI has almost finished reviewing 350 trial testimonies and 900 lab reports and about 1,200 cases still need to be reviewed. The bureau hasn’t been able to review 700 cases because prosecutors or police didn’t respond to information requests.