You may have heard the news: The Federal Bureau of Investigation (FBI) and the Federal Department of Justice (DOJ), in conjunction with the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project recently announced that they had completed a review of microscopic hair analysis cases. The findings, according to Peter Neufield, co-director of the Innocence Project, “confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions' case.”
As Slate Magazine so aptly puts it in plain English, “The FBI faked an entire field of forensic science.” The result has been, according to University of Virginia law professor Brandon L. Garrett, a “mass disaster.”
The disaster at issue is the FBI's use of hair analysis as evidence in a courtroom. Forensic scientists would examine hair found at the scene of a crime, and compare it to the hair of a suspect. This was common practice for nearly thirty years, until 2000, when the FBI started comparing the hair's DNA, rather than the hair itself. At its heart, the problem that this astoundingly simple: Comparing two hairs for similarities simply doesn't work that well. It worked so rarely, in fact, that the Committee on Identifying the Needs of the Forensic Science Community called the practice “highly unreliable." Nevertheless, FBI forensic “experts” would say that it did work. And very well. On the witness stand, at a trial.
According to the FBI's press release, 26 out of 28 forensic “experts” in the microscopic hair comparison unit “overstated forensic matches in ways that favored prosecutors” - they found that the hair found at the crime scene had similarities to the defendant's hair, and then got put on the witness stand at trial by the prosecution, where they said that the hairs matched. This happened at a staggering rate: 90% of the cases that the FBI has reviewed so far, affecting 284 defendants.
This seems like a big enough disaster: Innocent people have been convicted. But many of the crimes they were convicted of weren't run-of-the-mill misdemeanors for vandalizing someone's property – many were felony-level offenses, with felony-level sentencing. According to the FBI's press release, “defendants in at least 35 of these cases received the death penalty and errors were identified in 33 of those cases.”
This disaster, for some, is irreversible. “Nine of these defendants have already been executed and five died of other causes while on death row,” the press release admits.
The FBI has taken steps to right their wrong. They are notifying defendants who have been affected, and allowing federal defendants to make appeals where they otherwise would not be allowed. However, most of those affected were convicted in state courts. It will be up to the states to allow these cases to be brought back to court.
Attorney Kevin Trombold is watching this situation closely. If you think that someone you know might have been affected by this disaster, call his law office at 206-971-0067.