“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 David Koropp, a partner at Winston & Strawn LLP.

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, NACDL and its partners have worked closely for over a year with the government to determine 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, the DOJ has agreed, for the first time ever, not to raise procedural objections, such as statute of limitations and default claims, in response to the petitions of criminal defendants seeking to have their convictions overturned because of faulty forensics. This agreement will help ensure that defendants will not have any wrongful conviction claims dismissed before being reviewed on merit. 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 there is a court order or request by prosecutors for testing.

“The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented. It…recognizes that truth and justice should triumph over…obstacles,” said Peter Neufeld, Co-Director of the Innocence Project. “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…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. 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…inclusion of someone as a source…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…the science does not support such conclusions.”

The FBI was motivated to conduct the review after three men, Donald Gates, Santae Tribble and Kirk Odom, were exonerated 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 analysts overstated the evidence. The three men each served more than 20 years before they were exonerated. 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 examiners throughout the United States and that used some of the same scientifically flawed language used in these trials. As a result, it is likely that audits similar to this are 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. So far the review has already uncovered more than 2000 cases. For cases pre-dating 1985, the FBI will make best efforts to identify cases. 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, even in cases that resulted in a plea deal. The FBI will then review the information to determine if the lab report or trial testimony was invalid. The FBI will share its results with the Innocence Project and NACDL, which will conduct its own independent review.

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…to identify historical cases in which flawed forensic evidence…might have led to wrongful convictions,” added 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.

“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. In addition, the FBI agrees to perform DNA testing 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.”

Determining whether wrong forensic evidence was used in criminal cases is vital to maintaining the integrity of our criminal justice system and protecting the innocent defendant from undue punishment.

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Comments
  1. Wouldn’t that suggest that every cases Jeff Ashton prosecuted in Florida that dealt with (His expertise of “root banding”) will ALL be reviewed? His success may deminish as Orlando D.A.
    and his long carreer rewinded…

    Like

    • The hair analysis that they are partnering for is only for hair comparisons used to “identify” suspects, it does not include the novel study of “root banding”. In this instance, they would have taken a sample hair from the scene and matched it to a known suspect. The matches are questionable and that is what they are focusing on. Many of the “forensics” introduced in the Casey Anthony case were never testified to in court before, so due to her acquittal it is unnecessary to challenge their admission until another judge decides this is precedent to enter them as evidence elsewhere. Let’s hope that doesn’t happen. It is pretty much consensus that those things are not science. Another good sign is that Florida has changed its standard from Frye to Daubert, which will minimize the entering of bad forensics. If Jeff Ashton did have a case with hair comparison and the FBI handled it then yes, they will be looked at. It wouldn’t be his first infraction anyway. He’s the consummate politican and the voters don’t seem to care because his mug is famous. His record will speak louder and he already has done some things that will have questionable effects.

      Like

  2. ONE Word….Fantastic.
    Thank you for sharing this information. God Bless!

    Like

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