Fred Grimm

Fred Grimm: Bad science contributes to convictions

Bogus scientific testimony from FBI analysts helped put at least 10 defendants on Florida’s death row. One of those poor saps has since been executed.

The same discredited evidence — based on the FBI Laboratory’s microscopic hair comparisons — contributed to another 32 Florida criminal convictions.

The numbers are sure to grow. The Justice Department — working with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) — has reviewed only about 500 of some 3,000 cases in which FBI forensic experts provided testimony or evidentiary reports based on hair analysis now considered little better than pseudo science. (All these cases were tried in the two decades prior to 2000, before mitochondrial DNA testing supplanted hair analysis).

Of the first 500 cases, after the convictions of defendants who plead guilty were tossed, some 268 trial transcripts were checked. Last week, the FBI, the Justice Department, the Innocent Project and the NACDL issued one of the more chilling joint statements you’ll ever read: “In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 — 96% of the cases.”

It gets worse: “Defendants in at least 35 of these cases received the death penalty and errors were identified in 33 (94%) of those cases. Nine of these defendants have already been executed and five died of other causes while on death row.”

Imagine the effect on a jury when an expert from the FBI lab, after reciting his gaudy science-guy credentials, delivered damning testimony based on microscopic hair analysis. “What we now know is that an entire area of forensic science, both the analysis and the testimony on conclusions drawn from that analysis, were just plain wrong in virtually every instance,” Seth Miller, director of the Innocence Project of Florida, told me via e-mail.

“The effect is most acute for Florida because we apparently made use of this improper analysis in more criminal cases than any other state,” Miller said. No state had more suspect convictions than Florida with 42. (Next was Pennsylvania with 21, then Texas with 20.)

By the time these investigators finish reviewing the remaining 2,500 cases, Florida will likely have scores of other tainted convictions to add to our collective shame. Each case demands a thorough examination. Whether Florida lives up to its moral obligation is another question.

“It’s extraordinary. It will be a massive undertaking,” said Howard Finkelstein, Broward‘s famously outspoken public defender. “This isn’t something you can check on some data base. We’ll need to go back through the police reports, read through the depositions. It all has to be looked at. This isn’t something I can just assign to one of my $40,000 attorneys just out of law school.”

In many of these cases, prosecutors will undoubtedly argue that there’s no need for a new trial. “Prosecutors will dig in their heels and argue that they have other evidence,” Finkelstein said. “The trouble is that when an FBI scientist took the stand, it was like the voice coming down from Mount Olympus. That testimony became the lens through which the jury saw all the other evidence.”

In Florida, we’ve had some State Attorneys remaining obstinate even in the case of definitive DNA findings that a convicted prisoner was innocent. We’ve got some major legal tussles coming.

“With this new information, prosecutors shouldn't just shrug this off and say this evidence wasn't material,” Miller said. “When you have the most prominent criminal justice agency in the nation providing false testimony in so many cases to gain convictions under the guise of sound science, it is simply beneath our criminal justice system.”

The review was prompted after DNA tests led to the reversal of scores of convictions in which FBI Lab hair analysis had been used to link defendants to crime scenes. My former Herald colleague Spencer Hsu, now with the Washington Post, reported that more than a quarter of the 329 DNA-exoneration cases since 1989 had been based on “subjective, pattern-based forensic techniques” such as hair analysis and the also discredited bite-mark comparisons.

Finkelstein blamed prosecutorial exuberance for the use of such shabby evidence. Sorting out this mess, he said, will take months, years and will be costly both in terms of money and to crime victims, who’ll be forced to suffer the re-opening of those old cases. Some wrongfully convicted defendants will be freed, he said, but the misconduct by the FBI experts could also lead to “criminals who’ll walk.”

And it could get even worse. The joint statement noted: “Over the course of 25 years, the FBI conducted multiple two-week training courses that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI’s examiners had used in some lab reports and often in trial testimony.” The agencies “strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI.”

At the moment, all we have are numbers. No names. Not yet. The FBI, the Innocence Project and NACDL all declined my request for the names of the defendants in Florida’s suspect convictions, saying that it would be up to the convicted parties or their lawyers to make the identities public. Though in the case of the executed defendant, it’s hard to imagine why this information ought not be public. He is surely beyond objecting.

But apparently eight of these unnamed defendants remain on Florida’s death row. In a state that has had 13 wrongfully convicted prisoners exonerated via DNA evidence, the FBI hair analysis fiasco raises more troubling questions about the death penalty.

We can now add mendacious microscopic hair analysis to Florida’s unseemly methods of sending prisoners to death row, along with unreliable eye witnesses; dishonest and shoddy police work; false confessions elicited from frightened juveniles and mentally addled men; jailhouse admissions of guilt reported by cellmates looking for a get-out-of-jail deal.

As judges and defense lawyers and prosecutors examine this new batch of tainted cases, Floridians might consider the moral risk when their imperfect justice system includes death row.