The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.
The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison, the groups said under an agreement with the government to release results after the review of the first 200 convictions.
The FBI errors alone do not mean there was not other evidence of a convict’s guilt. Defendants and federal and state prosecutors in 46 states and the District of Columbia are being notified to determine whether there are grounds for appeals. Four defendants were previously exonerated.
The admissions mark a watershed in one of the country’s largest forensic scandals, highlighting the failure of the nation’s courts for decades to keep bogus scientific information from juries, legal analysts said. The question now, they said, is how state authorities and the courts will respond to findings that confirm long-suspected problems with subjective, pattern-based forensic techniques – like hair and bite-mark comparisons – that have contributed to wrongful convictions in more than one-quarter of 329 DNA-exoneration cases since 1989.
In a statement, the FBI and Justice Department vowed to continue to devote resources to address all cases and said they “are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI are also committed to ensuring the accuracy of future hair analysis, as well as the application of all disciplines of forensic science.”
Peter Neufeld, co-founder of the Innocence Project, commended the FBI and department for the collaboration but said, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.”
“We need an exhaustive investigation that looks at how the FBI, state governments that relied on examiners trained by the FBI and the courts allowed this to happen and why it wasn’t stopped much sooner,” Neufeld said.
Norman Reimer, the NACDL’s executive director, said, “Hopefully, this project establishes a precedent so that in future situations it will not take years to remediate the injustice.”
While unnamed federal officials previously acknowledged widespread problems, the FBI until now has withheld comment because findings might not be representative.
Sen. Richard Blumenthal, D-Conn., a former prosecutor, called on the FBI and Justice Department to notify defendants in all 2,500 targeted cases involving an FBI hair match about the problem even if their case has not been completed, and to redouble efforts in the three-year-old review to retrieve information on each case.
“These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law,” Blumenthal said.
Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, and the panel’s ranking Democrat, Patrick Leahy of Vermont, urged the bureau to conduct “a root-cause analysis” to prevent future breakdowns.
“It is critical that the Bureau identify and address the systemic factors that allowed this far-reaching problem to occur and continue for more than a decade,” the lawmakers wrote FBI Director James Comey on March 27, as findings were being finalized.
The FBI is waiting to complete all reviews to assess causes but has acknowledged that hair examiners until 2012 lacked written standards defining scientifically appropriate and erroneous ways to explain results in court. The bureau expects this year to complete similar standards for testimony and lab reports for 19 forensic disciplines.
Federal authorities launched the investigation in 2012 after The Washington Post reported that flawed forensic hair matches might have led to the convictions of hundreds of potentially innocent people since at least the 1970s, typically for murder, rape and other violent crimes nationwide.
The review confirmed that FBI experts systematically testified to the near-certainty of “matches” of crime-scene hairs to defendants, backing their claims by citing incomplete or misleading statistics drawn from their case work.
In reality, there is no accepted research on how often hair from different people may appear the same. Since 2000, the lab has used visual hair comparison to rule out someone as a possible source of hair or in combination with more accurate DNA testing.