The Department of Justice has made the unusual decision to waive procedural bars to re-open more than 2,000 criminal investigations so that the FBI can perform microscopic hair analysis of crime scene evidence.
“Many stakeholders in the system are beginning to accept the reality that we need to make it possible for inmates to raise their claims so that they can be decided on the merits,” said Peter Neufield, co-founder and co-director of the Innocence Project, an organization focused on exonerating individuals who have been wrongfully convicted.
In 1996, the FBI began to rely on DNA evidence in addition to microscopic hair comparison analysis. The hair analysis had previously been used alone to determine a positive association between known hair samples and crime scene evidence.
“There are standards for science [that have] to do with the ability to recreate the results you get,” said Sean D. O’Brien, a law professor at the University of Missouri, Kansas City.
“Microscopic hair analysis often involved faulty conclusions,” he said.
With the waiver of standard procedural bars such as statute of limitations and procedural default claims, he said cases will be reviewed on the merits of scientifically valid evidence.
“Decisions will be made with the reliability and the truth of the matter as the underlying conviction,” he said. “I really applaud the Justice Department for making that decision.”
Over the course of the past year, the FBI reviewed 15,000 cases and found 2,100 instances between 1985 and 2000 in which hair analysis showed a positive association with a known sample.
According to FBI spokeswoman Ann Todd, the bureau does not question the scientific value of hair analysis.
“There is no reason to believe the FBI laboratory employed ‘flawed’ forensic techniques,” she said in a statement.
“The purpose of the review is to determine if FBI laboratory examiner testimony and reports properly reflect the bounds of the underlying science,” she said, adding that cases involving the death sentence will be the highest priority.
The review is a partnership between the Innocence Project, the National Association of Criminal Defense Lawyers, the FBI, Michael Bromwich, the managing principal of the Bromwich Group and a partner at Goodwin Procter LLP who was Inspector General of the department between 1994 and 1999.
As a part of the process, the department has agreed to contact prosecutors and the FBI will perform free DNA tests in identified cases. Similar audits will be performed at the state level.
The Innocence Project, which has found that 72 of an initial 310 wrongful convictions overturned by DNA evidence relied on inaccurate hair analysis, will help individuals wishing to challenge convictions find new council and will independently review FBI findings on the basis of a consensus statement it developed with the bureau to determine what evidence would be scientifically admissible.
The review was prompted by three exonerations with the aid of the Public Defender Service for the District of Columbia, in which faulty hair analysis by the FBI had led to the false convictions of Donald Gates, Santae Tribble and Kirk Odom who each served more than 20 years in prison.
In 2002, DOJ, the FBI and the Innocence Project worked to identify wrongful criminal convictions on the basis of unreliable bullet lead analysis, but did not waive procedural bars in the process.
“I think it’s a terrific thing for the Justice Department to have been willing to do,” Bromwich said. “It will help overcome some of the bars that have been created over the years.”