New analysis reverses conviction
Change in DNA interpretation of hair wipes sex offense off San Jose man’s record
SAN JOSE >> The victim was a toddler, too young to handle being questioned by a defense attorney about whether the defendant was the man who kidnapped her in the middle of the night, then dumped her a block away with her sailor suit torn open.
All the prosecutor had was two strands of dark hair. But it was enough for the jury to find Glenn Payne guilty in 1991 of lewd conduct with a child, after a crime lab analyst in San Jose testified that the odds that someone else had committed the sex crime were infinitesimal based on his examination of the hair under a microscope.
Payne served 15 years of a 27year sentence, was released in 2005 and has had to register as a sex offender ever since — until now.
A Santa Clara County Superior Court judge on Friday wiped Payne’s conviction off
his record, culminating a yearslong effort by the Northern California Innocence Project. It turns out that what Payne’s jury and others across the country were told about the soundness of microscopic hair analysis before DNA testing became the gold standard in the late 1990s has since been repudiated by the scientific community and the FBI.
Nationwide, verdicts have been reversed or wrongful convictions declared in at least nine other old cases that relied heavily on matching several characteristics of hair, including the thickness of the cuticle and the distribution of pigment. Payne’s case is the first in a California state court; two other men
will be tried again in federal court here on murder and kidnapping charges after their verdicts were overturned because of the central role the hair evidence played in their trials.
“Now that I won’t have to register as a sex offender, people won’t look at me funny,” said Payne, 55, who is staying with his mother in San Jose and has had problems with his health and sobriety — as well as with homelessness — since his release, according to the Innocence Project. “I’m very thankful for all this to carry on my life.”
District Attorney Jeff Rosen and the head of his conviction integrity unit, David Angel, supported the Innocence Project’s motion to vacate the conviction.
“The verdict was not fair and the evidence was not reliable,’’ Angel wrote in a court document. “Due to changes in forensic science,
we now know that the evidence presented to the jury concerning the likelihood that the hair found at the scene and on his person were from him and the child victim was simply not accurate.”
One reason the prosecution had taken the relatively weak case to trial was because the child told a detective that a black man in a hat had hurt her, adding later in the interview that it was “Tinisha’s uncle,” who lived across the street and had been over to the family’s house.
During the trial, the girl sat on her mother’s lap and identified Payne as the assailant, but was unable to answer a single question from the defense. Her testimony, which the jury had already heard, was thrown out by the judge because defendants have a constitutional right to confront their accusers. But the judge
refused to declare a mistrial and allowed the trial to proceed over the objections of the defense.
Another factor that might have figured in the decision to try the case — but which was not presented as evidence at the trial because it would have been prejudicial — was that Payne had been convicted about four years earlier of a non-sexual assault of an 11-year-old stranger.
A Santa Clara County Superior Court spokesman said the records in the 1987 case have been destroyed.
Payne first approached the Innocence Project more than 15 years ago, asking for assistance in getting post-conviction DNA testing of the hair. At the time of his trial, DNA could be detected only in hair with the roots still attached, which wasn’t the case with the two strands analyzed in the Payne case. By 2000,
advances in DNA tests allowed hair without roots to be analyzed. But in Payne’s case, the hair could not be re-tested because it had been destroyed.
The Innocence Project at Santa Clara University School of Law took up Payne’s case again after the FBI, which had once championed the use of the hair analysis technique, announced in 2015 the results of a review it conducted with the help of defense lawyers. The review revealed that the agency’s analysts had put more weight on hair comparisons than was scientifically appropriate, giving erroneous testimony in 90 percent of the 268 cases in which they had testified.
The effort to unearth more cases is continuing, said Vanessa Antoun, senior resource counsel at the National Association of Criminal Defense Lawyers and a leading authority on the issue.
But it isn’t easy to get district attorneys to devote resources to what might end up being fruitless fishing expeditions. In a 2016 letter to the governors of all 50 states, former FBI Director James Comey had to ask for their help in getting state prosecutors to hunt for transcripts from trials in which the flawed microscopic hair analysis played a pivotal role.
Linda Starr, co-founder and executive director of the Northern California Innocence Project, said district attorneys from about half of California’s 58 counties have responded to requests from a coalition of groups devoted to the effort. Some of the DAs have appointed a point person to handle the issue.