Imagine that a brutal rape and murder is committed. Shortly thereafter, an arrest is made. At the accused’s trial, the most significant piece of evidence comes from the prosecutor’s expert, who testifies, “The hair found at the murder crime scene matches perfectly to the hair sample taken from the defendant’s head.” Based primarily on that trial testimony, the accused is convicted and sent to death row. What if the testimony was later found to be “junk science?” What if that same expert provided similar testimony in numerous other trials involving defendants accused of similar violent offenses? Worse, what if numerous other “experts” provided similar flawed testimony in hundreds of other cases?
Unfortunately, the hypothetical described above is a reality. It was just revealed by both the FBI and Justice Department that for more than a two decade period before 2000, almost every “expert” in their forensic unit provided flawed testimony in just about every trial in which they provided evidence in criminal cases. They would systematically come into court and claim that they were certain that hairs found at the crime scene matched that of the defendants’. Additionally they bolstered their claims in front of the juries by citing incomplete or misleading statistics. 26 out of 28 FBI microscopic hair comparison “experts” are involved in this appalling scandal. Those examiners provided flawed testimony in 95% of the 268 criminal trials reviewed to date. The cases being reviewed by the National Association of Criminal Defense Lawyers and the Innocence Project include 32 people sentenced to execution. Of the 32 sentenced to death, 14 of those have already died in prison or have been executed. As many as 2500 cases could have been affected. It’s important to note that the bogus testimony wasn’t the sole evidence of guilt in all of the cases. Prosecutors and defense lawyers are examining each case individually to determine whether they may be dealing with an innocent defendant. Four defendants were already exonerated.
The question now is how will judges and prosecutors respond to this, one of our nation’s largest criminal justice scandals. The FBI and Justice Department claims that they are sparing no resources to ensure justice for those defendants affected by this. The FBI revealed that until 2012, there were no written standards governing the proper way for their “experts” to explain results while testifying in court.
My reaction to this is, “Finally!” For decades, defense lawyers have been arguing that microscopic hair analysis used by the FBI to convict defendants was nothing more than junk science. The findings are abhorrent and require a top to bottom review of how these so-called “experts” are trained by federal and state agencies. What is imperative is that this cannot happen again. I don’t blame all prosecutors. I believe most of them erroneously believed the false evidence with the best of intentions and were honestly following the law. Moving forward, I certainly hope that no prosecutors stand in the way of permitting new DNA testing on those cases affected by this debacle. I also hope that prosecutors drop any procedural objections they have on appeals filed based on these grounds.
Those who passionately believe in capital punishment must do so with the belief that a defendant has been given a fair trial prior to being placed on death row. With this latest announcement, one has to question the very foundation of their belief. Without question, this is a colossal scandal with enormous lessons waiting to be learned by many.