Over Easy: Forensic Junk Science
In the case of wrongful convictions based on junk science and the courts’ religious reliance on crime lab analysts’ embellished, invalid or overstated testimony regarding forensic ‘evidence,’ microscopic hair comparison analysis may be near the top of the list. On Monday, the FBI issued a press release admitting “that the examiners’ testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements.” The New York Times reports that in one case, a prosecutor assured the jury that there was a “one in ten million” chance that a hair could belong to someone other than the defendant when in reality the hair was, quite literally, hair of a dog.
According to the FBI press release:
“These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions’ case,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “While the FBI and DOJ are to be commended for bringing these errors to light and notifying many of the people adversely affected, this epic miscarriage of justice calls for a rigorous review to determine how this started almost four decades ago and why it took so long to come to light. We also need lawmakers in Washington to step up and demand research and national standards to prevent the exaggeration of results in reports and in testimony by crime lab analysts.”
Norman L. Reimer, Executor Director of NACDL added, “It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence. Just as we need lawmakers to prevent future systemic failures, we need courts to give those who were impacted by this evidence a second look at their convictions.”
It’s not just the FBI and it’s not just visual hair comparison. State crime labs are run by police and self-governing. That is to say that unlike hospital clinical laboratories that are subject to CLIA oversight, state crime labs, to the extent that they are ‘certified,’ are rubber-stamped by ASCLAD– a group of crime lab directors. There are many factors that contribute to systemic failure and a fundamentally flawed criminal justice system. Invalid, overstated, or outright false lab analyst testimony is subjected to little or no scrutiny by the courts or even by the defense bar in some cases. It takes little more than a white coat hypnotic spell to result in court opinions that elevate junk science to the level of gospel. For instance, just last year, the Supreme Court of Kentucky in a published opinion (setting precedent with 2011-SC-000709-MR.PDF) wrote:
In this case, the Commonwealth offered evidence that has been admissible in the state of Kentucky for many years. Microscopic hair analysis is a scientifically reliable method, and we, therefore, do not require that a Daubert hearing be held with regard to the admittance of such evidence. We will not disturb the decisions of the trial court without a clear showing of abuse of discretion. Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996). In this case, there is no indication that the trial court abused its discretion in admitting the evidence. Thus, Appellant’s argument is without merit.
It’s time to fix these crime labs. If it’s not bogus hair analysis, it’s something else: bite marks, ear prints, accident reconstruction, toxicology dip sticks, DNA misinterpretation or whatever, depending on the day. When all else fails, the labs simply lose the sample, or ‘inadvertently’ destroy it. It is an area that is result-driven and rife with bias. Prosecutors and dishonest lab techs testifying falsely enjoy absolute immunity for knowingly and intentionally destroying people’s lives. Crime labs encourage police and prosecutors to give them as much information about what they are looking for as possible so that they can taylor their results accordingly. That is not organic chemistry. That is a railroad that will continue to run on time until the defense bar and the public put a stop to it.