Matthew T. Mangino
April 24, 2015
Two years ago, the FBI agreed to review more than 2,000 cases processed between 1985 and 2000 in which hair samples helped secure convictions.
At the time, Peter Neufeld, of the Innocence Project, told McClatchy Newspapers, “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.”
The National Association of Criminal Defense Lawyers and the Innocence Project are assisting the government with this unprecedented review and the initial findings are startling and may be far-reaching.
Since at least the 1970s, written FBI lab reports typically stated that a hair association could not be used as positive identification. For years some agents went beyond the science and testified that their hair analysis was a near-certain match.
Although the FBI continued to support hair analysis, the accuracy of hair analysis came into question. A 2009 National Academy of Sciences report found no good studies of the technique’s error rates. The academy concluded that hair analysis had “limited probative value” and isn’t able to pinpoint individual defendants.
When the joint review was originally announced, FBI Special Agent Ann Todd said, “There is no reason to believe the FBI Laboratory employed ‘flawed’ forensic techniques,” adding that microscopic hair analysis is “a valid forensic technique and one that is still conducted at the lab” alongside DNA testing.
“The purpose of the review is to determine if FBI Laboratory examiner testimony, and reports, properly reflect the bounds of the underlying science,” Todd noted.
The early results of the review firmly challenge the validity of hair analysis and certainly the scope of the examiner’s testimony.
This week, the Justice Department and FBI formally acknowledged that nearly every examiner in the FBI’s microscopic hair comparison unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period.
According to The Washington Post, of 28 examiners in the unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed.
The cases include those of 32 defendants sentenced to death. According to The Post, 14 have been executed or died in prison.
The St. Louis Post-Dispatch reported that one of the men executed was Missouri inmate Jeffrey Ferguson. He was executed on March 26, 2014. The Missouri State Public Defender’s Office said that the FBI analyst, Michael Malone, made several errors in the cases against Malone “exceeded the limits of science” in claiming the hair “could be associated with a specific individual to the exclusion of all others,” reported The Post-Dispatch.
They also say Malone erred in assigning a statistical probability to his claim and in citing the number of other comparisons performed to bolster his conclusion.
Before one concludes that an innocent man has been executed because of faulty hair analysis consider that although Ferguson originally claimed he was innocent, he later expressed remorse for the killing while behind bars. He acknowledged his guilt to a Post-Dispatch columnist, but said he was too drunk to remember the crime.
When complete, the hair analysis review will encompass about 2,500 cases in which forensic examiners have testified about hair matches drawn from over 21,000 federal and state requests to the FBI’s hair-comparison unit between 1972 and 1999, reported The New American.
Even if all of the federal cases are addressed there are another 500 to 1,000 state and local crime-lab analysts who were trained by the same FBI examiners who gave the flawed testimony.
The number of cases could be extraordinary. State and local government offices will have to decide if they will conduct reviews and who will pay for those reviews.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter @MatthewTMangino.
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