A TANGLE OF TROUBLE FINDING FLAWED TESTIMONY
State’s push to review cases involving hair analysis hits snags
In 2016, the agency that runs Virginia’s crime labs began an ambitious project to find cases in which people had been convicted after flawed testimony from hair examiners.
But after two years, the department isn’t anywhere close to being finished.
Inspired by a project started by the FBI in 2015, the Virginia Department of Forensic Science decided to review any cases in which an examiner had testified to the probability that the hair entered into evidence belonged to one particular person.
Experts say that kind of testimony is flawed because science can’t definitively link any hair sample to a single person.
The FBI review stems from three DNA exonerations between 2009 and 2012 in which all three defendants were convicted on faulty microscopic hair comparison examiner testimony.
The FBI trained hair examiners across the country, and in 2015, the FBI, The Innocence Project, the U.S. Department of Justice and the National Association of Criminal Defense Lawyers found that at least 90 percent of the trial transcripts the FBI analyzed included erroneous statements made by hair examiners.
In 2016, then-FBI Director James Comey asked governors to check whether their state and local lab hair examiners “were staying within the bounds of science” when testifying.
So Virginia took on that challenge.
The problem is, there are
about a million case files in the archives from between 1973 and 1994 that need to be digitized and searched, according to Amy Curtis, the Department of Forensic Science’s counsel who leads the project.
Some digital files already uploaded into the department’s case management system also have to be analyzed.
As staff are scanning the files, they’re determining whether a case involved a microscopic hair analysis and if a “positive probative” association was found — for example, if the victim’s hair was found on the defendant’s clothing.
From there, they look at whether a person was charged with a crime and if there was a trial.
If a trial took place, did an examiner testify on the microscopic hair analysis?
That’s where things get really tricky.
In order for two attorneys and a forensic scientist to read the examiner’s testimony and decide if it was flawed, they need the transcripts.
But standard protocol for court reporters is to destroy records like transcripts after 10 years, and record keeping varies by court clerk.
When a transcript isn’t available through the court reporter or clerk, the review team is turning to prosecutors, defense attorneys and even the defendants themselves to see if they have a copy.
“We have just been struggling along, basically,” Curtis told the Forensic Science Board in October.
Curtis said her department has asked for the state Department of Corrections’ help in notifying inmates of the study in the hopes that defendants who had hair examiners testify in their trials saved their transcripts.
She estimates her staff has gone through about 150,000 of the million cases so far. Of those, 358 had a positive probative association. Of those, 16 cases involved a suspect that was tried and convicted and the department was able to get the transcripts.
The names of defendants, victims and attorneys are all redacted from the transcripts before the review team looks at them to avoid any possible bias.
So far, the team has decided to send seven notifications to defendants letting them know their trial had questionable testimony from a hair examiner.
Of the seven, four notifications are pending because the department hasn’t been able to track down the defendant or their family. The Department of Forensic Science declined to release the three letters it has sent, saying they’re now part of “criminal investigative files.” Virginia’s public-records law allows the department to decide whether to release such files or keep them secret.
The victim or victim’s family aren’t notified if the department finds erroneous testimony.
Curtis stressed that faulty testimony from hair examiners doesn’t necessarily mean defendants were wrongly convicted. It simply means they have a right to ask for evidence to be retested.
The defense and the prosecutor typically have to agree for further testing, or one of the parties can seek a court order, she said.
She hasn’t received any responses or requests for retesting from the defendants that received notifications.
About microscopic hair testing
In microscopic hair testing, an examiner uses a high-powered microscope to examine a piece of hair from a crime scene and compares it to a known hair sample.
If there are enough similarities, the examiner deems the hair a match.
The examiner also uses a sample of about 10 random hairs to compare it to the hair found at the crime scene.
Scientists have criticized this because of its limited reliability, based, in part, on the unknown pool of subjects with the same hair characteristics.
Vanessa Antoun, senior resource counsel for the National Association of Criminal Defense Lawyers, said the FBI offered a two-week training for hair examiners in state and local labs.
But she said the FBI’s high rate of error in examiner testimony doesn’t necessarily correlate to erroneous testimony from state examiners.
In 1996, the FBI stopped relying solely on microscopic hair analysis and began using DNA testing in conjunction with the hair examinations.
What they look for
Once the review team has the transcripts in front of them, they answer three questions:
Did the testifying examiner state that an evidentiary hair could be associated with a specific individual to the exclusion of all others?
Did the examiner assign a statistical weight or probability or provide a likelihood that the questioned hair originated from a particular source?
Does the testimony contain any other potentially misleading statements or inferences?
If the answer to any of those is “yes”, the review team notifies the defendant, the prosecutor, the law enforcement agency that arrested the defendant and the defense attorney of the faulty testimony.
Delays around the country
Antoun said the challenges Virginia is facing aren’t new.
She said other states that have taken up Comey’s request have faced similar delays, as each lab stores old criminal case files and forensic data differently.
“Records aren’t stored in a way that you can just go to a filing cabinet and find those,” she said in a phone interview.
Antoun applauded the state’s idea of asking inmates for their transcripts.
And while the FBI is wrapping up its review, there are still cases in which a transcript can’t be found.
“The FBI has indicated that they are continuing to put their best efforts into locating these,” she said. “If there is a transcript out there and no one has seen it yet, hopefully the defense counsel or the defendant might have it. It’s not a case where (the FBI is) just going to completely forget about it.”