DOJ Admits FBI Forensic Examiners Gave False Testimony for Decades

Originally published on April 21, 2015, at NationofChange.org 

In response to a Washington Post investigation, the Department of Justice and FBI have formally admitted that the majority of FBI forensic hair analysts provided flawed testimony and false evidence against criminal defendants for nearly three decades. With the advent of DNA testing, the FBI has discovered that their own forensic examiners gave erroneous testimony in more than 95% of cases that have been reviewed. Due to the fact that FBI analysts provided scientifically invalid testimony for decades, numerous innocent convicts have been exonerated and released from prison.

In 1997, the Justice Department discredited the work of FBI analyst, Special Agent Michael P. Malone, and 13 other analysts, finding that they had made false forensic reports and performed inaccurate tests. Five years later, DNA analysts at the FBI found that the Bureau’s own forensic examiners reported false hair matches over 11% of the time. The 2009 National Academy of Science report on forensic science, Strengthening Forensic Science in the United States: A Path Forward, deemed microscopic hair comparison analysis to be highly unreliable.

In December 2009, Donald E. Gates was released from prison and exonerated after DNA evidence proved that the hair and semen found on the victim’s body did not belong to Gates. FBI Special Agent Michael Malone’s false testimony and flawed hair analysis resulted in Gates’ conviction for a rape and murder that he did not commit. Gates served 28 years in prison for Agent Malone’s incompetence.

On April 16, 2012, The Washington Post published an article revealing that Justice Department officials had known for years that flawed forensic testimony might have led to the convictions of hundreds of potentially innocent people. After serving 22 years for rape and robbery, Kirk L. Odom was officially exonerated in July 2012 when DNA evidence discredited FBI Special Agent Myron Scholberg’s hair analysis testimony. Later that year, Santae Tribble was exonerated after spending 28 years in prison for murder. DNA testing later revealed that FBI Special Agent James Hilverda had overstated his credibility and offered false testimony against Tribble.

In July 2013, the Innocence Project and National Association of Criminal Defense Lawyers (NACDL) announced an agreement with the Justice Department and FBI to review over 2,500 criminal cases involving FBI microscopic hair analysis between 1972 and 1999. According to The Washington Post, the FBI has completed reviews of 342 cases. Out of those cases, 268 trials involved hair evidence used against defendants. FBI examiners reportedly provided flawed forensic testimony in 257 of those 268 trials, or over 95% of the time.

“We need an exhaustive investigation that looks at how the FBI, state governments that relied on examiners trained by the FBI, and the courts allowed this to happen and why it wasn’t stopped much sooner,” declared Peter Neufeld, co-founder of the Innocence Project. “Unfortunately hair analysis is only one of many flawed forensic practices that are still used that pose the threat of infecting criminal trials across the nation. We need leadership in Washington to ensure scientific rigor and greater oversight over forensics to prevent these miscarriages of justice.”

The Innocence Project has identified that 72 of the first 310 wrongful convictions overturned by DNA evidence involved faulty hair evidence. In 2014, prosecutors agreed to exonerate Cleveland Wright after serving 28 years in prison for a murder he did not commit. Although hair forensic examiners had erroneously testified against Wright, DNA testing eventually revealed that the hair found inside the killer’s stocking mask did not belong to Wright.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 reportedly overstated forensic matches in ways that favored prosecutors. Since there is no accepted research on how often hair from various people may appear the same to an analyst, the FBI has gravitated toward using DNA testing instead. Finding difficulty in checking cases before 1985, the Bureau has been unable to review 700 cases due to the fact that police departments and prosecutors refused to respond to information requests.

The FBI examiners whose substandard work is currently under review, including FBI agents Malone, Hilverda, and Scholberg, taught roughly 500 to 1,000 state and local crime lab analysts to testify using the same methods.

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