Wrongly convicted man gets justice
Guilty verdict rested on faulty hair-test study
Glenn Payne was convicted in 1991 of molesting a 2-yearold girl in San Jose and spent more than 13 years in prison. The crucial evidence against him was expert testimony by a county forensic analyst that hair found on Payne must have come from the victim — that there was only one chance in 129,600 that it had come from someone else.
Four months ago, the analyst recanted his testimony, saying it was based on an unreliable study and he would never make such a statistical claim today. On Friday, without objection from the prosecutor, a Santa Clara County judge, Vanessa Zecher, overturned Payne’s conviction and his criminal record was cleared.
“I’m very thankful after all of that,” Payne, 55, said after the brief hearing. “I got tired of living like that.”
Payne has been out of prison since April 2005, so the main benefit for him, aside from removing the felony from his record, was to eliminate his lifelong obligation to register with police every year as a sex offender, a status that was also posted on a public website.
Because of the registration requirement, “it has been really difficult to find housing and work,” said Payne, who has been homeless at times in recent years.
Still, he can’t get his 13 years back. And because he has not been declared innocent — merely not guilty — he is ineligible for the $100-per-day compensation California awards to former inmates who have been exonerated.
But Payne says his mind is now at peace. And his clearance is due in large part to the
persistence of the Northern California Innocence Project, the Santa Clara University Law School program that works to free the wrongfully convicted.
“I’m very thankful for them,” Payne told reporters. He had difficulty speaking at length, and Innocence Project representatives said Payne has suffered from mental illnesses for most of his life.
“I want to find housing, enjoy my life,” he told The Chronicle afterward. “I’m figuring out what tomorrow will be, and the next day. It’s amazing to think about.”
Payne was arrested in April 1990 after the 2year-old, who lived across the street, was found asleep on a walkway a block away, her clothes torn and covered with debris. She told police a man who lived nearby had hurt her, and eventually, under questioning by the prosecutor at trial, identified Payne as the attacker.
But, at trial, the girl would not answer the defense lawyer’s questions, and the judge told jurors to disregard her testimony. The only physical evidence against Payne was two strands of hair.
For his part, Payne told investigators and later testified that he had been home all night, and his mother and sister backed him up. But county criminalist Mark Moriyama, who analyzed the hair strands, said one discovered on Payne’s body was so similar to the victim’s hair that it must have come from her, and the other found on a tablecloth covering her body was probably Payne’s.
Multiplying the probability figures, Moriyama said the odds against a match were 129,600 to 1.
After an initial deadlock, the jury convicted Payne of lewd conduct with a child, and he was sentenced to 27 years in prison. He has maintained his innocence, and in 2002, three years before his release on parole after serving 13 years, he asked the Innocence Project for help in seeking DNA tests of the evidence against him.
The project agreed, but its executive director, attorney Linda Starr, said a two-year search produced only a court document showing the evidence had been destroyed in 1992.
A break in the case finally came after the Innocence Project’s national organization teamed with the FBI and the National Association of Criminal Defense Lawyers in 2013 in an investigation of hair-identification testimony.
The results, issued two years later, were shocking: FBI expert witnesses had wrongly matched hair samples in 90 percent of the cases reviewed over two decades, some of which led to death sentences.
Starr said the Innocence Project started a review of hair-identification cases in California, recovered the transcript of Payne’s trial after a lengthy search, and began meeting with the district attorney’s office that had prosecuted him.
In September, the office issued a declaration signed by Moriyama, who still works for the county, and the director of the district attorney’s crime laboratory. They said Moriyama’s statistics were based on a 1974 study that should not have been used for that purpose and had never been “uniformly accepted by hair experts in the forensic community.”
At most, they said, the evidence showed that the hair found on Payne “could have come from the victim,” and they “no longer believe” that the statistics the jury heard were scientifically valid.
Payne’s case isn’t unique, the Innocence Project said. It is reviewing nearly 300 more cases in Northern California in which hair analysis led to convictions. Starr said Moriyama, according to his own testimony, had appeared as an expert witness in eight other cases.
“It’s the first microscopic hair comparison reversal and dismissal in the state of California in state court,” she said. “What we hope is that it will help others identify these cases.”
Starr said Payne’s case was only an example of a broader problem that is now coming to light.
“What was once relied upon by juries as scientific fact in many of the so-called forensic sciences,” she said, “is now known to be false.”