Matthew T. Mangino
June 21, 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. Some of the cases were in Ohio and Pennsylvania.
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 Laboratory 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.
Todd noted, “the purpose of the review is to determine if FBI Laboratory-examiner testimony, and reports, properly reflect the bounds of the underlying science.” The early results of the review firmly challenge the validity of hair analysis and certainly the scope of the examiner’s testimony.
Recently, the U.S. 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.
According to the FBI, in the 268 cases where examiners provided testimony used to implicate a defendant at trial, erroneous statements were made in 257 – 96 percent – of the cases. Defendants in at least 35 of these cases received the death penalty, and errors were identified in 33 of those cases. Nine of the defendants already have been executed, and five died of other causes while on death row. The states with capital cases included Ohio and Pennsylvania.
When complete, the hair analysis review will encompass about 2,500 cases in which forensic examiners have testified about hair matches drawn from more than 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, that might just be the tip of the iceberg. There are state and local crime-lab analysts who were trained by the same FBI examiners who gave the flawed testimony.
The FBI review is ongoing, according to Philadelphia Magazine, and the agency plans to examine thousands of additional cases across the country including those in Pennsylvania and Ohio. The number of cases could be extraordinary.
Now, 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 P.C. His book “The Executioner’s Toll,” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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