Category Archives: Forensic controls

Unreliable Evidence Cost Man 25 Years and Chicago $6.3 Million

According to the Chicago Sun-Times (here), the City of Chicago has agreed to pay $6.3 million to Larry Gillard to settle a federal lawsuit alleging that the Chicago police crime lab distorted evidence, which contributed to his wrongful conviction of a 1981 rape.  Gillard served 25 years in prison before DNA proved his innocence.

Two pieces of unreliable evidence conspired to convict Gillard. A Chicago Police Crime Laboratory analyst testified that Gillard was among 4.4 percent of African Continue reading

National Commission on Forensic Science…

Press release:
U.S. DEPARTMENTS OF JUSTICE AND COMMERCE NAME EXPERTS
TO FIRST-EVER NATIONAL COMMISSION ON FORENSIC SCIENCE
 
WASHINGTON – The U.S. Department of Justice and the U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) today announced appointments to a newly created National Commission on Forensic Science.
Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system.  The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.
The commission is co-chaired by Deputy Attorney General James M. Cole and Under Secretary of Commerce for Standards and Technology and NIST Director Patrick D. Gallagher.  Nelson Santos, deputy assistant administrator for the Office of Forensic Sciences at the Drug Enforcement Administration, and John M. Butler, special assistant to the NIST director for forensic science, serve as vice-chairs.
“I appreciate the commitment each of the commissioners has made and look forward to working with them to strengthen the validity and reliability of the forensic sciences and enhance quality assurance and quality control,” said Deputy Attorney General Cole.  “Scientifically valid and accurate forensic analysis supports all aspects of our justice system.”
The commission includes federal, state and local forensic science service providers; research scientists and academics; law enforcement officials; prosecutors, defense attorneys and judges; and other stakeholders from across the country.  This breadth of experience and expertise reflects the many different entities that contribute to forensic science practice in the U.S. and will ensure these broad perspectives are represented on the commission and in its work.
“This new commission represents an extremely broad range of expertise and skills,” said Under Secretary Gallagher.  “It will help ensure that forensic science is supported by the strongest possible science-based evidence gathering, analysis and measurement.
“This latest and most impressive collaboration between the Department of Justice and the National Institute of Standards and Technology will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all,’” said John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy.
The following commissioners were chosen from a pool of more than 300 candidates:
Suzanne Bell, Ph.D., Associate Professor, West Virginia University; Frederick Bieber, Ph.D., Medical Geneticist, Brigham and Women’s Hospital and Associate Professor of Pathology, Harvard Medical School; Thomas Cech, Ph.D., Distinguished Professor, University of Colorado, Boulder; Cecelia Crouse, Ph.D., Director, Palm Beach County Sheriff’s Office Crime Laboratory;Gregory Czarnopys, Deputy Assistant Director, Forensic Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives; M. Bonner Denton, Ph.D., Professor, University of Arizona; Vincent Di Maio, M.D., Consultant in Forensic Pathology; Troy Duster, Ph.D., Chancellor’s Professor and Senior Fellow, Warren Institute on Law and Social Policy, University of California, Berkeley; Jules Epstein, Associate Professor of Law, Widener University; Stephen Fienberg, Ph.D., Maurice Falk University Professor of Statistics and Social Science, Carnegie Mellon University; Andrea Ferreira-Gonzalez, Ph.D., Professor of Pathology and Director Molecular Diagnostics Laboratory, Virginia Commonwealth University; John Fudenberg, Assistant Coroner, Office of the Coroner/Medical Examiner, Clark County, Nevada; S. James Gates, Jr., Ph.D., University System Regents Professor and John S. Toll Professor of Physics, University of Maryland; Dean Gialamas,Crime Laboratory Director, Los Angeles County Sheriff’s Department, Scientific Services Bureau;Paul Giannelli, Distinguished University Professor and Albert J Weatherhead III and Richard W. Weatherhead Professor of Law, Case Western Reserve University; Hon. Barbara Hervey, Judge, Texas Court of Criminal Appeals; Susan Howley, Public Policy Director, National Center for Victims of Crime; Ted Hunt, Chief Trial Attorney, Jackson County Prosecuting Attorney’s Office, Kansas City, Missouri; Linda Jackson, Director, Virginia Department of Forensic Science;  John Kacavas, United States Attorney, District of New Hampshire; Pamela King, Assistant State Public Defender, Minnesota State Public Defender Office; Marc LeBeau, Ph.D., Senior Forensic Scientist, Scientific Analysis Section, Federal Bureau of Investigation; Julia Leighton, General Counsel, Public Defender Service, District of Columbia; Hon. Bridget Mary McCormack, Justice, Michigan Supreme Court; Peter Neufeld, Co-Director, Innocence Project, Benjamin Cardozo School of Law; Phil Pulaski, Chief of Detectives, New YorkCity Police Department; Hon. Jed Rakoff, Senior United States District Judge, Southern District of New York; Matthew Redle,Sheridan County and Prosecuting Attorney, Sheridan, Wyoming; Michael “Jeff” Salyards, Ph.D.,Executive Director, Defense Forensic Science Center, Department of the Army; and Ryant Washington, Sheriff, Fluvanna County Sherriff’s Office, Fluvanna, Virginia.
Ex-Officio Members:
David Honey, Ph.D., Assistant Deputy Director of National Intelligence for Science and Technology and Director of Science and Technology, Office of the Director of National Intelligence;Marilyn Huestis, Ph.D., Chief, Chemistry and Drug Metabolism Section, National Institute on Drug Abuse, National Institutes of Health; Gerald LaPorte, Acting Director, Office of Investigative and Forensic Sciences, National Institute of Justice; Patricia Manzolillo, Laboratory Director, Forensic Laboratory Services, U.S. Postal Inspection Service; Frances Schrotter, Senior Vice President and Chief Operation Officer, American National Standards Institute; Kathryn Turman,Program Director, Office for Victim Assistance, Federal Bureau of Investigation; and Mark Weiss, Ph.D., Division Director, Behavioral and Cognitive Sciences, National Science Foundation.
The first meeting of the Commission will be held February 3-4, 2014, at 810 7th Street, N.W., Washington, DC.  The membership list, notice of meetings, commission charter and other related material will be maintained within the General Service Administration’s Federal Advisory Committee Act (FACA) database at http://www.facadatabase.gov.
As a non-regulatory agency of the U.S. Department of Commerce, NIST promotes U.S. innovation and industrial competitiveness by advancing measurement science, standards and technology in ways that enhance economic security and improve our quality of life.  To learn more about NIST, visit www.nist.gov.
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Friday’s Quick Clicks…

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  • The American Civil Liberties Union (ACLU) recently awarded the William O. Douglas Award to UW law professor Jackie McMurtrie for her nearly 20 years of work toward bringing justice to wrongly convicted individuals with the Innocence Project Northwest.
  • In more Jackie McMurtrie news, an editorial in this week’s Seattle Times praised the efforts made by attorneys and law students at the Innocence Project Northwest Clinic at the University of Washington School Of Law in their pursuit to overturn a King County man’s wrongful conviction.  Way to go Jackie!
  • California Innocence Project exoneree Brian Banks, and NFL player, signed a movie deal to tell his story
  • Bad ballistics evidence may have caused a Quebec judge to be wrongfully convicted of murdering his wife
  • Scrapping the corroboration requirement in Scotland could cause more wrongful convictions
  • Exoneree Martin Tankleff settles wrongful conviction suit for $3.4 million.
  • Illinois exoneree Alan Beamon has wrongful conviction lawsuit dismissed

Tuesday’s Quick Clicks…

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  • The 2013 holiday season meant a great deal to Brandon Olebar, who, after 10 years of wrongful incarceration, got to enjoy the festivities with his family for the first time in over a decade. Olebar’s release comes thanks to the efforts of the Innocence Project Northwest (IPNW).  More….
  • In NY, Robert Jones, who has been imprisoned for 19 years for a murder he says he didn’t commit, hopes to be released after State’s key witness says she was pressured to identify him as the perp.
  • In Massachusetts, doctors believe Brian Peixoto was wrongfully convicted of child murder in an alleged junk medical science case.

Friday’s Quick Clicks…

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Monday’s Quick Clicks…

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  • In New Jersey, DNA test results exonerate Gerard Richardson in bite mark murder case
  • Colorado begins compensation payments to exoneree Robert Dewey
  • Illinois exoneree Carl Chatman briefly jailed when police mistakenly believe he was unregistered sex offender

Tuesday’s Quick Clicks…

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Thursday’s Quick Clicks…

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  • Washington state exonerees Alan Northrop and Larry Davis settle their federal wrongful conviction lawsuit for $10.5 million
  • The city of Peekskill has approved a $5.4 million settlement with a man who spent 16 years in prison for a killing he didn’t commit.  The Journal News (http://lohud.us/18CSmN5 ) says the Peekskill Common Council approved the settlement with Jeffrey Deskovic (DEH’-skoh-vihch) on Tuesday night.  Deskovic was 16 when he was charged with the November 1989 killing of a 15-year-old Peekskill High School classmate.  He was freed from prison in 2006 after DNA linked the killing to another man.  Deskovic previously received $8.3 million from New York state and Westchester County. He used some of the money to start the Jeffrey Deskovic Foundation for Justice to help other innocent people get out of prison.  In May, he received a master’s degree from John Jay College of Criminal Justice.
  • Another Texas arson case getting scrutiny

‘False Justice: Eight Myths That Convict the Innocent’ – Why Did They Write It?

FalseJusticeI hope that you’re all familiar with, and in fact have read, the book by Jim and Nancy Petro, False Justice: Eight Myths That Convict the Innocent.

Jim&Nancy

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Jim is a former Attorney General of the state of Ohio, and Nancy, among her many other endeavors, is also a contributing editor to this blog.

I recently just happened across this interview with Jim and Nancy at the Columbus Metropolitan Club in 2010.  They talk about what brought them to write the book.

It’s about an hour long, and I found it both fascinating and illuminating.  Definitely worth a watch.

PA Innocence Project Launches Forensic Science Academy for Lawyers

From the Pennsylvania Innocence Project Blog:

In 2009, the National Academy of Sciences produced an exhaustive study of the state of forensic science in the United States. The report, Strengthening Forensic Science in the United States: A Path Forward, was a rude awakening for the entire criminal justice system as to the state of forensic science in our country, and particularly took lawyers to task for not understanding forensic science at all. In response, the Pa. Innocence Project sought to provide that education for Pennsylvania prosecutors and defense lawyers.

Collaborating with Arcadia University and the Center for Forensic Science Research and Education, we developed a 16-hour course to cover topics including death investigations, DNA, fingerprints, chemistry, and arson and explosives. Leading practitioners and scientists are conducting the courses, and lawyers are getting hands-on experience with the techniques to better understand their applications and limitations.

In the early evening of September 12, 30 prosecutors and public defenders gathered in Willow Grove, Pennsylvania for the first lecture.Dr. Barry Logan, the Executive Director of the Center, covered the first topic on Death Investigations and Forensic Toxicology. The course will go through October 31, meeting each Thursday evening to cover a different area of forensic science.

It is the goal of the Pennsylvania Innocence Project to provide educational opportunities for all members of the criminal justice system to ensure the fair administration of justice.

 

A Victory for the “Flat Earth Society”

clickFrom chron.com:

NEW YORK (AP) — Bite mark evidence that may connect a murder suspect to the victim will be allowed at his trial, a judge decided Thursday, disappointing those who hoped the case would help get the forensic technique banished from the nation’s courtrooms.

Manhattan state Supreme Court Justice Maxwell Wiley’s decision follows lengthy testimony last year that went to the heart of the reliability of bite mark analysis, which involves comparing bite marks left on the flesh of victims with the teeth of suspects.

At least 24 men convicted or charged with murder or rape based on bite marks found on victims have been exonerated in the U.S. since 2000, according to a June report by The Associated Press based on decades of court records, archives, news reports and filings by the Innocence Project, which helps wrongfully convicted inmates win freedom through DNA testing.

Many of those who were exonerated spent more than a decade in prison, including time on death row.

The AP analysis is the most comprehensive count to date of those exonerated after being convicted or charged based partially or entirely on bite mark evidence.

In Thursday’s case, Wiley said he would explain the reasoning behind his ruling in a written decision, but he did not say when that would be.

He did say that his basic finding was that “the field of bite mark analysis comports with the standards of evidence under New York law.” He added: “It’s obviously a field that has not been looked at closely by the courts in a long time.”

Chris Fabricant, director of strategic litigation at the Innocence Project, was at Thursday’s hearing and said Wiley’s decision was “contrary to the overwhelming consensus of the scientific community.”

“It’s a victory for the Flat Earth Society,” he said.

The Innocence Project and other defense attorneys slam bite mark analysis as sham science and argue that it should no longer be allowed in courtrooms.

Many forensic dentists defend the practice as useful, especially when trying to eliminate suspects, and say it has helped convict murderers and rapists, most famously serial killer Ted Bundy.

The New York case involves the murder of 33-year-old Kristine Yitref, whose beaten and strangled body was found wrapped in garbage bags under a bed in a hotel near Times Square in 2007.

A forensic dentist concluded that a mark on her body matched the teeth of Clarence Brian Dean, a 41-year-old fugitive sex offender from Alabama.

Dean told police he killed Yitref in self-defense, saying she and another man attacked him in a robbery attempt after he agreed to pay her for sex; no other man was found.

Dean is awaiting trial on a murder charge. His attorney declined to comment after Thursday’s hearing.

Prosecutors wanted the bite mark evidence allowed at his trial to help convince jurors of Dean’s guilt. His defense attorneys wanted it barred because of past mistakes involving the practice and how powerful bite mark evidence can be to jurors, even with opposing testimony.

Dr. David Senn, a San Antonio forensic dentist, testified in last year’s hearings that bite mark analysis is valid when used in a closed population of suspects and that problems of the past can be blamed on individual dentists, not the science itself.

“The issue is not that bite mark analysis is invalid, but that bite mark examiners are not properly vetted,” he said.

He added that he couldn’t imagine a case today in which he would identify a biter unless “there was other very strong corroborating evidence.”

Testifying for defense attorneys at the hearings was Dr. Mary Bush, a researcher at the University of Buffalowho has used computer models to study bite marks made on dead bodies using pliers and dental models. Her research, which has been published in the Journal of Forensic Sciences, found that human dentition is not unique and cannot be accurately transferred to skin.

Bush acknowledges that a significant limitation of her research includes the fact that she’s using dead bodies that have been frozen and thawed and using machinery to create bite marks, a method that is far from re-creating a real-life bite made on a live person during an act of violence.

Bush testified that she did not feel that bite marks should be admissible in courtrooms but that more research in the field is needed.

 

NSF to Support Forensics Research

The NAS Report (see here, here, and here) is ever so slowly starting to have an impact.

From the journal Nature, Aug.28, 2013.

The US National Science Foundation (NSF) is seeking proposals for basic research in forensic science, in an effort to improve rigor and standards. The move is partly a result of a 2009 US National Research Council report that called for the NSF to support forensics research, and for scientists and medical officers in the field to be certified, says Mark Weiss, division director for behavioral and cognitive science at the NSF in Arlington, Virginia. “If you’ve got an idea, we want to hear about it,” says Weiss, who adds that forensics research is considered a national and legislative priority. He encourages interested researchers to contact program directors in any relevant NSF directorate.

Crime Labs Paid For Convictions…

From the Huffington Post:

By Radley Balko

I’ve previously written about the cognitive bias problem in state crime labs. This is the bias that can creep into the work of crime lab analysts when they report to, say, a state police agency, or the state attorney general. If they’re considered part of the state’s “team” — if performance reviews and job assessments are done by police or prosecutors — even the most honest and conscientious of analysts are at risk of cognitive bias. Hence, the countless and continuing crime lab scandals we’ve seen over the last couple decades. And this of course doesn’t even touch on the more blatant examples of outright corruption.

In a new paper for the journal Criminal Justice Ethics, Roger Koppl and Meghan Sacks look at how the criminal justice system actually incentivizes wrongful convictions. In their section on state crime labs, they discover some astonishing new information about how many of these labs are funded.

Funding crime labs through court-assessed fees creates another channel for bias to enter crime lab analyses. In jurisdictions with this practice the crime lab receives a sum of money for each conviction of a given type. Ray Wickenheiser says, ‘‘Collection of court costs is the only stable source of funding for the Acadiana Crime Lab. $10 is received for each guilty plea or verdict from each speeding ticket, and $50 from each DWI (Driving While Impaired) and drug offense.’’

In Broward County, Florida, ‘‘Monies deposited in the Trust Fund are principally court costs assessed upon conviction of driving or boating under the influence ($50) or selling, manufacturing, delivery, or possession of a controlled substance ($100).’’

Several state statutory schemes require defendants to pay crime laboratory fees upon conviction. North Carolina General Statutes require, ‘‘[f]or the services of’’ the state or local crime lab, that judges in criminal cases assess a $600 fee to be charged ‘‘upon conviction’’ and remitted to the law enforcement agency containing the lab whenever that lab ‘‘performed DNA analysis of the crime, tests of bodily fluids of the defendant for the presence of alcohol or controlled substances, or analysis of any controlled substance possessed by the defendant or the defendant’s agent.’’

Illinois crime labs receive fees upon convictions for sex offenses, controlled substance offenses, and those involving driving under the influence. Mississippi crime labs require crime laboratory fees for various conviction types, including arson, aiding suicide, and driving while intoxicated.

Similar provisions exist in Alabama, New Mexico, Kentucky, New Jersey, Virginia, and, until recently, Michigan. Other states have broadened the scope even further. Washington statutes require a $100 crime lab fee for any conviction that involves lab analysis. Kansas statutes require offenders ‘‘to pay a separate court cost of $400 for every individual offense if forensic science or laboratory services or forensic computer examination services are provided in connection with the investigation.’’
In addition to those already listed, the following states also require crime lab fees in connection with various conviction types: Arizona, California, Missouri, Tennessee, and Wisconsin.

Think about how these fee structures play out in the day-to-day work in these labs. Every analyst knows that a test result implicating a suspect will result in a fee paid to the lab. Every result that clears a suspect means no fee. They’re literally being paid to provide the analysis to win convictions. Their findings are then presented to juries as the careful, meticulous work of an objective scientist.

No wonder there have been so many scandals. I’m sure we’ll continue to see more.

(Disclosure: In 2008, Koppl and I co-wrote an article for Slate on how to fix some of these problems.)

 

Top Chinese Forensic Scientist Quits in Protest Over Miscarriages of Justice

Following hot on the heels of previous posts about the rising awareness of wrongful convictions in China (see here… and here…. and here…), one of the leading forensic scientists in the country has now resigned in protest at the mishandling of evidence in criminal cases and a series of miscarriages of justice:

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Wang Xuemei, the vice-president of the government-administered Chinese Forensic Medicine Association, said she could no longer be involved with an organisation that routinely serves up “ridiculous and false expert conclusions”

Defence solicitors have commented that the judiciary in China remain under the control of the Communist Party, and cannot be independent. Such comments, and a high profile resignation, should serve as clarion calls for reformers in China to work to bring about urgent reforms, and those in the international innocence movement must continue reaching out to our Chinese colleagues, to ensure that exonerations can be secured. Read more here…

Top Chinese forensic scientist quits over mishandled cases

Neil Heywood case: forensic scientist who raised doubts over conviction quits

Ahead of Bo Xilai trial, a top China forensic scientist quits

Tuesday’s Quick Clicks…

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  • The National Center for Reason and Justice’s response to DA Kathleen Rice’s self-serving report on the Jesse Friedman case.
  • Irish Innocence Project students intern in the U.S.
  • A killer from Ipswich, England, who spent a decade claiming he was the victim of a miscarriage of justice has finally admitted his guilt.  Simon Hall, 35, was convicted and jailed for life in 2003 after murdering Joan Albert, 79, in her home in Capel St Mary, Suffolk. She was found in her hallway on December 16, 2001, after being stabbed five times.  He had protested his innocence ever since, launching a series of appeals, winning the backing of MPs and appearing in the BBC documentary Rough Justice.  But now it has emerged Hall, previously of Hill House Road, Ipswich, had admitted his guilt to prison authorities, bringing his campaign to an end.
  • An exonerated Durham man said Monday that the State Bureau of Investigation has agreed to pay him $4.6 million after he was wrongfully convicted of murder and spent 17 years behind bars.  Greg Taylor sued the agency after an independent review found questionable practices at its state crime lab. Taylor’s conviction was bolstered in part by blood evidence analysis from the lab that has since been discredited.
  • In New Orleans, police avoid turning over public records to Innocence Project New Orleans
  • Exoneree Brian Banks cherishes preseason debut with Atlanta Falcons

Death Investigation in the US – Medical Examiner or Coroner?

autopsy table

It’s common, in cases which involve a death, for the determination, by autopsy, of manner and cause of that death to result in criminal charges being filed against a suspect.  And in many cases, the results of that autopsy will be the evidence that convicts or acquits that suspect.  Unfortunately, it’s all too common for the results of an autopsy to be unreliable or downright wrong.

A wrong result from an autopsy?  How can this happen?  Accurate determination of manner and cause of death by autopsy requires a medical examiner, or coroner, with a high level of competency and with special training.  Sadly, there are both coroners and forensic pathologists practicing in this country who are unfit for the job.  To understand how this can be, it’s important to understand the distinction between a “medical examiner” and a “coroner.”  Medical examiners are appointed, or hired, by the responsible governmental body, and are uniformly qualified as forensic pathologists.  Coroners are politically elected, and in some states, are not even required to be a doctor.  In fact, South Carolina only recently required that a coroner be a high school graduate.  Coroners who have no medical credentials what so ever will commonly hire or contract forensic pathologists to perform the actual autopsies, but the competence and credentials of those pathologists may be of little concern to the hiring coroner, and the most important determining factor controlling those hiring decisions will be the budget.  There is also evidence to suggest that because the coroner is an elected political position, that those officials may unduly favor law enforcement in the decisions that they make.

The problems with the coroner system have been egregious enough that the National Academy of Sciences, in it’s landmark 2009 report “Strengthening Forensic Science in the United States, A Path Forward,” recommended that the coroner system be abolished.

In February, 2011, PBS aired an hour long investigation into the coroner system in the US titled ‘Post Mortem.’  I personally found this to be illuminating, eye-opening, infuriating, and riveting.  You can watch the video, PBS Frontline, “Post Mortem” here.

Forensic Science in the UK: “A Threat to Justice”

UnknownThe state of the forensic science ‘market’ in the UK has been the subject of much debate (see here…  ) March 2012 saw the closure of the main provider of forensic services, the Forensic Science Service, by order of the government. It was deemed that with the service ‘losing’ (note ‘losing’ rather than ‘costing’) 2million pounds a year, it could no longer be sustained. Instead, forensic provision is now provided by private companies, individual consultants, or the police themselves. Now, the highly respected Science and Technology Select Committee of MPs has produced a report on the ‘fiasco’ of forensic science in the UK, roundly criticising the government move to close the FSS and warning of the dangers of miscarriages of justice. The provision of forensic science is now fragmented, dangerously unsupervised and the lack of research funding will only make matters worse in the years to come. The damning report contains no ‘news’ to those critics who predicted that the risks the government were taking with forensic science could end in disaster: the wrongful conviction of innocents as well as the diminishing ability to detect offenders.  The government report has been widely reported in the press:

UK forensic science slammed by inquiry

Forensics upheaval ‘threat to justice’, MPs warn

The full Forensic Science report can be found here… 

Scientists Applaud FBI’s Decision To Review Reliability Of Forensic Hair Analysis

From Mintpressnews.com:

The FBI announced last week it would reexamine thousands of once-closed cases in which a person was convicted — and in some cases put to death —  based on hair samples. Known as microscopic hair comparison analysis, this type of testing was often used to link a criminal defendant to a crime, but its reliability has now been called into question.

The FBI said that in more than 2,000 cases from 1985 to 2000, analysts may have exaggerated the significance of hair analyses or reported them inaccurately. All defendants affected by the inaccurate analyses will be notified and offered free DNA testing if errors in are found in the FBI’s lab work or testimony.

According to a report from The Washington Post, more than 120 convictions have been flagged as suspicious in the FBI’s review thus far. Of those cases, 27 defendants received the death penalty as their punishment.

In addition to reviewing individual cases, the FBI is also using the review process to improve lab training, testimony, audit systems and research.

“There is no reason to believe the FBI Laboratory employed ‘flawed’ forensic techniques,” Special Agent Ann Todd, a spokeswoman for the FBI, said. “The purpose of the review is to determine if FBI Laboratory examiner testimony and reports properly reflect the bounds of the underlying science.”

The review includes every case between 1985 and 2000 in which the FBI found a positive association between hair taken from defendants and hair found at a crime scene.

Those who pushed for the review included the national nonprofit Innocence Project, the National Association for Criminal Defense Lawyers and its partners, which included pro bono attorneys.

Since DNA testing can cost several thousand dollars, hair analysis is often used to link a defendant to a crime scene. However, the practice was deemed “highly unreliable” in 2009 by a National Academy of Sciences report that concluded hair sample analyses cannot be linked to one person, but only categories of people.

Despite the poor reliability, Todd says microscopic hair analysis is “a valid forensic technique and one that is still conducted at the lab” along with DNA testing.

Peter Neufeld, co-director of the Innocence Project, applauded the FBI’s admission that there may be an issue with the validity of some of the findings in the cases.

“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,” he said in a press release.

The review “signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles,” Neufeld said. “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.”

“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,” he added. “The government is now acknowledging that this was wrong and that the science does not support such conclusions,”

Until all of the cases can be analyzed and verified for accuracy, officials from the Justice Department have waived the deadlines and procedural hurdles for those inmates who are currently on death row.

Steven D. Benjamin, a Virginia attorney and the president of the National Association for Criminal Defense Lawyers, said the Justice Department’s decision to delay the execution of those defendants whose innocence is once again up for debate is a critical step in “giving wrongly convicted people a fair chance at a fair review.”

“We hope that the actions taken by the FBI and DOJ will serve as a model for state law enforcement and crime laboratories throughout the country to respect ethical obligations to reverse wrongful convictions when learning about improper evidence,” said Norman Reimer, executive director of the association.

Though groups like the Innocence Project don’t often find themselves endorsing the FBI’s efforts, the organization’s leaders have all publicly applauded the FBI for the review. They say it is an important first step 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.”

Tuesday’s Quick Clicks…

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  • Wisconsin exoneree Joseph Frey sadly now homeless
  • Taxpayers will pay nearly $500,000 for legal fees in the Michael Morton case
  • The Innocence Project (Cardozo), 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.
  • Andrew Johnson exonerated by DNA in Wyoming

U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors

From the WashingtoPost:

An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.

The review led to an 11th-hour stay of execution in Mississippi in May.

How accurate is forensic analysis?

Learn more about the reliability of each type of forensic analysis.

DNA

Fingerprint

Handwriting

Polygraph

Firearm evidence

Hair and
fiber

Pattern and impression

Bullet lead composition

Independent scientists critique suspect forensic work

Select a name below to see case reviews

It is not known how many of the cases involve errors, how many led to wrongful convictions or how many mistakes may now jeopardize valid convictions. Those questions will be explored as the review continues.

The discovery of the more than two dozen capital cases promises that the examination could become a factor in the debate over the death penalty. Some opponents have long held that the execution of a person confirmed to be innocent would crystallize doubts about capital punishment. But if DNA or other testing confirms all convictions, it would strengthen proponents’ arguments that the system works.

FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer. The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined. The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).

The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.

At issue is a once-widespread practice by which some FBI experts exaggerated the significance of “matches” drawn from microscopic analysis of hair found at crime scenes.

Since at least the 1970s, written FBI Laboratory reports typically stated that a hair association could not be used as positive identification. However, on the witness stand, several agents for years went beyond the science and testified that their hair analysis was a near-certain match.

The new review listed examples of scientifically invalid testimony, including claiming to associate a hair with a single person “to the exclusion of all others,” or to state or suggest a probability for such a match from past casework.

Whatever the findings of the review, the initiative is pushing state and local labs to take similar measures.

For instance, the Texas Forensic Science Commission on Friday directed all labs under its jurisdiction to take the first step to scrutinize hair cases, in a state that has executed more defendants than any other since 1982.

Separately, FBI officials said their intention is to review and disclose problems in capital cases even after a defendant has been executed.

“We didn’t do this to be a model for anyone — other than when there’s a problem, you have to face it, and you have to figure how to fix it, move forward and make sure it doesn’t happen again,” FBI general counsel Andrew Weissmann said. “That tone and approach is set from the very top of this building,” he said, referring to FBI Director Robert S. Mueller III.

David Christian “Chris” Hassell, director of the FBI Laboratory, said the review will be used to improve lab training, testimony, audit systems and research, as it has done when previousbreakdowns were uncovered. The lab overhauled scientific practices when whistleblowers revealed problems in 1996 and again after an FBI fingerprint misidentification in a high-profile 2003 terrorism case, he said.

“One of the things good scientists do is question their assumptions. No matter what the field, what the discipline, those questions should be up for debate,” Hassell said. “That’s as true in forensics as anything else.”

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Advocates for defendants and the wrongly convicted called the undertaking a watershed moment in police and prosecutorial agencies’ willingness to re-open old cases because of scientific errors uncovered by DNA testing.

Peter J. Neufeld, co-founder of the Innocence Project, which supports inmates who seek exoneration through DNA testing, applauded the FBI, calling the review historic and a “major step forward to improve the criminal justice system and the rigor of forensic science in the United States.”

Norman L. Reimer, executive director of the NACDL, also praised the effort, predicting that it would have “an enormous impact on the states” and calling on the defense bar to represent indigent convicts.

“That’s going to be a very big job as this unfolds,” said Reimer, whose group has spent 1,500 hours identifying cases for the second round of review.

Under terms finalized with the groups last month, the Justice Department will notify prosecutors and convicted defendants or defense attorneys if an internal review panel or the two external groups find that FBI examiners “exceeded the limits of science” when they claimed to link crime scene hair to defendants in reports or testimony.

If so, the department will assist the class of prisoners in unprecedented ways, including waiving statutes of limitations and other federal rules that since 1996 have restricted post-conviction appeals. The FBI also will test DNA evidence if sought by a judge or prosecutor.

The review will prioritize capital cases, then cases in which defendants are imprisoned.

Unlike DNA analysis, there is no accepted research on how often hair from different people may appear the same.

The federal inquiry came after the Public Defender Service helped exonerate three D.C. men through DNA testing that showed that three FBI hair examiners contributed to their wrongful convictions for rape or murder in the early 1980s.

The response has been notable for the department and the FBI, which in the past has been accused of overprotecting its agents. Twice since 1996, authorities conducted case reviews largely in secret after the scientific integrity of the FBI Lab was faulted.

Weissmann said that although earlier reviews lawfully gave prosecutors discretion to decide when to turn over potentially exculpatory material to the defense, greater transparency will “lessen skepticism” about the government’s motives. It also will be cheaper, faster and more effective because private parties can help track down decades-old cases.

Scientific errors “are not owned by one side,” he said. “This gives the same information to both sides, and they can litigate it.”

The review terms could have wide repercussions. The FBI is examining more than 21,000 federal and state cases referred to the FBI Lab’s hair unit from 1982 through 1999 — by which time DNA testing of hair was routine — and the bureau has asked for help in finding cases before lab files were computerized in 1985.

Of 15,000 files reviewed to date, the FBI said a hair association was declared in about 2,100 cases. Investigators have contacted police and prosecutors in more than 1,200 of those cases to find out whether hair evidence was used in a conviction, in which case trial transcripts will be sought. However, 400 of those cases have been closed because prosecutors did not respond.

On May 7, Mississippi’s Supreme Court stayed the execution of Willie Jerome Manning for a 1992 double homicide hours before he was set to die by lethal injection.

FBI cases may represent only the tip of the problem.

While the FBI employed 27 hair examiners during the period under review, FBI officials confirmed for the first time this week that records indicate that about 500 people attended one-week hair comparison classes given by FBI examiners between 1979 and 2009. Nearly all of them came from state and local labs.

State and local prosecutors handle more than 95 percent of violent crimes.

In April, the accreditation arm of the American Society of Crime Laboratory Continue reading