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Examiners’ testimony about hair analysis being questioned

July 15, 2015

The announcement earlier this year of concerns surrounding the FBI’s analysis of hair samples put forensic disciplines into the spotlight again and raised questions about reliability and validity of such evidence.

watson-francis-mugWatson

Indiana was identified in the announcement as having criminal convictions in cases where bureau experts overstated the lab results. However, even with this admission, defendants still face long odds in getting state courts to grant them a new trial.

The courts do not like to give defendants another bite at the apple, explained Frances Lee Watson, director of the Wrongful Conviction Clinic at Indiana University Robert H. McKinney School of Law. To get a successor post-conviction petition, the defendant has to show that if the analysis had not been overstated, there is a reasonable probability the jury would reach a different conclusion.

For the defense, Watson explained, the battle is all uphill.

powell Powell

Dave Powell, executive director of the Indiana Prosecuting Attorneys Council, pointed out the issue spotlighted by the FBI’s report was the testimony given by its examiners. The science is not flawed, he said. Forensic evidence is always helpful in finding the truth and science has a role in solving the puzzle or problem.

The focus is on criminal cases from many years ago, but the FBI is not publicly identifying which cases that used hair analysis might have problems. In an email, the bureau said it is contacting the prosecutors and defense attorneys involved in the cases, but letting them make decisions about publicizing.

Indiana Attorney General Greg Zoeller’s office said the bureau has contacted it 26 times in recent years, asking for assistance in locating court records from old criminal cases where some type of forensic testing was provided.

“In short, the Attorney General’s Office has received no information from the FBI that they have identified any problem with evidence or testing in any Indiana case,” said Bryan Corbin, spokesman for the Indiana attorney general. “The only information we have is that they are trying to review all cases that they were involved in and have asked for our help obtaining records and information.”

Long-term problem

The FBI, along with the Department of Justice, the Innocence Project and the National Association of Criminal Defense Lawyers announced problems in April with testimonies given by 26 of the 28 bureau examiners.

These examiners submitted reports or testified about microscopic hair analysis in nearly 3,000 cases. Of the 500 cases the FBI reviewed as of March 2015, a total of 268 relied on examiners’ testimonies to inculpate a defendant. And of those cases, 257 contained wrong statements. Of the 35 death penalty cases involved, errors have been identified in 33. According to the FBI, states with capital cases include Indiana.

The problems with examiners were highlighted as far back as 1996 when the Department of Justice established a task force to review the FBI laboratory. A third review by the DOJ’s Office of Inspector General completed in 2014 found “serious deficiencies” in the DOJ’s and the FBI’s overall management of the case-review process.

Although the 1996 task force made an effort to prioritize cases involving defendants on death row, it took five years to identify all the defendants and then state authorities were not notified that the convictions might be tainted.

One of those cases involved Michael Lockhart, who received the death penalty in both Indiana and Texas. The FBI found the Indiana conviction eight months prior to the defendant’s execution, but did not find the Texas conviction until after he was executed in December 1997.

The criminal cases now being reviewed in Indiana are likely complex and contain a great deal of evidence, so getting a conviction overturned because of problems with the hair analysis would be difficult, Powell said. Prosecutors do not routinely send evidence to the FBI labs for testing. Hair comparison would be one piece of evidence and not the only piece in the case.

Criminal defense attorney Stacy Uliana conceded that in some cases, the totality of the evidence convinced the jury. They might not have been swayed solely by faulty hair analysis and examiner testimony. Still, she believes the erroneous statements could have led to some wrongful convictions.

“I would hope (the FBI’s announcement) opens up the door for at least a few people who have been sitting in prison for years to have their cases reviewed,” she said.

‘CSI Effect’

In the courtroom, prosecutors and defense counsel know juries expect to see and hear about the lab tests and scientific analysis done on the smallest pieces of evidence found during the investigation. The attorneys have dubbed this expectation the “CSI Effect,” named after the popular television show where a team of forensic scientists solve crimes.

Tests, comparisons and conclusions done in the laboratory are still presented at trial. In fact, the FBI maintained that despite the problems, microscopic hair comparison analysis is a “valid scientific technique still conducted” in the bureau’s laboratory.

Watson classified hair analysis along with bite marks, ballistics, tool marks and fingerprints as “bad science.” To support her contention, she pointed to the 2009 report by the National Academy of Sciences. That report found “serious deficiencies” in the forensic science system. Strong standards and protocols for analyzing and reporting the evidence as well as rigorous and mandatory certification programs for the forensic scientists were lacking.

DNA analysis was the exception, according to the NAS. This is a science-based test that relies on standard procedures, trained examiners and a broad database of samples. With results from a DNA test, the analyst can give a statistical probability as to how likely the material matches the defendant.

Still, forensic evidence is popular with juries. Both Powell and Watson said juries want the truth and they want the truth to be easy. Having an expert testifying about lab results can be very persuasive. The jury then feels good about a verdict it believes is based on science, especially if the defendant is denying guilt.

Likewise, Indiana courts defer to science. The Indiana Supreme Court ruled in 1997’s McGrew v. State that there is no “specific test or set of prongs” which must be considered that satisfy Indiana Evidence Rule 702(b) when offering forensic evidence.

uliana-stacy-mug Uliana

This ruling lowered the standard for getting forensic disciplines into Indiana courts, Uliana said. Once the prosecutors show the analysis is based on the opinion of the examiner and not on solid science, they do not have to prove the test is reliable.

The only way for defendants to counter is on cross-examination. Unless the defense counsel challenges the analysis, the jury may not be able to distinguish between the finding that the hair matched the defendant and the finding that the hair could belong to the defendant, Watson said.

Second bite

Although a difficult hurdle to clear, Watson has been successful in giving Darryl Pinkins another try to overturn his conviction for a 1989 rape in Lake County.

She debunked the prosecution’s reliance during trial on serology inclusion evidence and the testimony of the Indiana State Police lab analyst. Then, she convinced the Indiana Court of Appeals by arguing the new TrueAllele interpretation technology shows the mixture of bodily fluids collected from the crime scene did not contain Pinkins’ DNA.

“The mystery of DNA mixtures has been solved,” Pinkins’ 2015 petition asserted. “Science now supports the innocence of Darryl Pinkins.”

The Indiana Court of Appeals granted Pinkins’ petition for successive post-conviction relief in June.•

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