Forensic science

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


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.

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Hair and
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Independent scientists critique suspect forensic work

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 previous breakdowns 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.”

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 Directors declined to order state and local labs to conduct reviews, but issued a public notice recommending that each laboratory evaluate the impact of improper statements on past convictions, reminding them of their ethical obligation to act in case of a potential miscarriage of justice.

FBI Lab officials say they have not been contacted by other labs about their review or who completed the FBI classes.

The Fallibility of Forensic Evidence Argues Against the Death Penalty


May 12, 2012 Source : http://journalstar.com

A recent editorial in the Lincoln Journal Star of Nebraska concluded that experience with inaccurate evidence from crime labs shows that the death penalty cannot be trusted in the taking of life.  The paper called for the repeal of the death penalty based on a case in which the state’s CSI director tampered with evidence in a murder case. Recently, the Nebraska Supreme Court upheld the conviction of former CSI chief David Kofoed for planting evidence in a double murder. Kofoed placed a speck of blood in a car belonging to a suspect, which resulted in two innocent men being held in jail for several months. The editorial said such crime-lab error has also been found elsewhere: “You will be – or should be – appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence. The problems crop up in New York, San Francisco, Houston and many points in between. Sometimes the problem is sloppiness. Sometimes technicians are manufacturing evidence deliberately. Sometimes the science itself turns out to be untrustworthy.” The editorial cited a 2009 report by the National Academy of Sciences that criticized some of the science behind crime lab testimony. The report found that, other than DNA technology, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” and that, “Substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.”  The editorial concluded, “The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future,” and thus people should “support repeal of the death penalty.”  Read full editorial below.

Editorial: Too fallible for death penalty

The case of the crooked crime scene investigator in Douglas County provides another glaring example of why the criminal justice system cannot be trusted to apply the death penalty.

Humans not only make honest mistakes, sometimes they plant evidence and lie.

The conviction of former CSI chief David Kofoed for tampering with the evidence in a double murder case was upheld earlier this month by the Nebraska Supreme Court.

Kofoed was convicted for planting a speck of blood in a car belonging to a suspect in the case. His bogus evidence resulted in two innocent men being held in jail for several months. Police even wrung a false confession out of one of them.

Fortunately for the two men, the case against them unraveled before they were tried. DNA evidence found on a ring and marijuana pipe found in the home belonged to a pair of Wisconsin teens. They later pleaded guilty to killing a Murdock couple while looking for money during a road trip.

If you think the Kofoed case is one of a kind, think again.

Just do an Internet search for “crime lab scandal.”

You will be — or should be — appalled at the number of times that crime labs turn out to be providing inaccurate and phony evidence.

The problems crop up in New York, San Francisco, Houston and many points in between. Sometimes the problem is sloppiness. Sometimes technicians are manufacturing evidence deliberately. Sometimes the science itself turns out to be untrustworthy.

Even the vaunted crime lab operated by the Federal Bureau of Investigation has come under criticism on more than one occasion. In 2004 FBI lab technician Jacqueline Blake admitted to submitting false DNA evidence in 100 cases. FBI metallurgist Kathleen Lundy admitted to lying on the witness stand. To her credit, she admitted her testimony was false before the murder trial was over.

A 2009 report by the National Academy of Sciences was harshly critical of some of the science behind crime lab testimony, such as using marks on a bullet to determine whether a bullet came from a certain gun. Other than DNA technology, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” the report stated.

The report concluded: “Substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.”

The fallibility of the criminal justice system has been demonstrated again and again. Innocent people have been executed in the past and will be in the future. If you don’t want blood on your hands, support repeal of the death penalty.