FBI Admits Its Forensic Experts Gave False Testimony In Hundreds Of Cases
An elite FBI Forensics unit gave flawed and false testimony in cases over a period that lasted more than 20 years.
An internal review by the Federal Bureau of Investigation and the Justice Department has found that forensic experts employed by the FBI exaggerated or misstated evidence at trial in nearly every trial in which they testified over a period that lasted more than a decade:
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’slargest post-conviction review of questioned forensic evidence.
The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison, the groups said under an agreement with the government to release results after the review of the first 200 convictions.
The FBI errors alone do not mean there was not other evidence of a convict’s guilt. Defendants and federal and state prosecutors in 46 states and the District are being notified to determine whether there are grounds for appeals. Four defendants were previously exonerated.
The admissions mark a watershed in one of the country’s largest forensic scandals, highlighting the failure of the nation’s courts for decades to keep bogus scientific information from juries, legal analysts said. The question now, they said, is how state authorities and the courts will respond to findings that confirm long-suspected problems with subjective, pattern-based forensic techniques — like hair and bite-mark comparisons — that have contributed to wrongful convictions in more than one-quarter of 329 DNA-exoneration cases since 1989.
In a statement, the FBI and Justice Department vowed to continue to devote resources to address all cases and said they “are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI are also committed to ensuring the accuracy of future hair analysis, as well as the application of all disciplines of forensic science.”
Peter Neufeld, co-founder of the Innocence Project, commended the FBI and department for the collaboration but said, “The FBI’s three-decade use of microscopic hair analysis to incriminate defendants was a complete disaster.”
“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,” Neufeld said.
Norman L. Reimer, the NACDL’s executive director, said, “Hopefully, this project establishes a precedent so that in future situations it will not take years to remediate the injustice.”
While unnamed federal officials previously acknowledged widespreadproblems, the FBI until now has withheld comment because findings might not be representative.
Sen. Richard Blumenthal (D-Conn.), a former prosecutor, called on the FBI and Justice Department to notify defendants in all 2,500 targeted cases involving an FBI hair match about the problem even if their case has not been completed, and to redouble efforts in the three-year-old review to retrieve information on each case.
“These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law,” Blumenthal said.
The review that this story references has been going on for quite some time, actually. It was two years ago, that the FBI and Justice Department announced that they would begin the process of reviewing the testimony of Bureau forensic experts, particularly those who had testified regarding the identification of suspects via hair samples, which is often an important element in rape cases as well as in establishing the identity of a person who may have been at the scene at the crime. The review, which at the time was limited to a handful of death penalty cases, was unprecedented in the history of Federal law enforcement and, as I noted at the time, it was one that was long overdue given some of the allegations that had been made over the years regarding expert witnesses for the prosecution who may have put their thumbs on the scale just a little too much. Now that the review is done and the scope of the problematic testimony is revealed, though, it’s clear that the initial estimates of how pervasive the problem was were not even close in discussing the scope of the problem.
The fact that there were problems with this forensic testimony does not mean, of course, that all of these Defendants are in fact innocent, nor does it mean that they would not have been convicted without the testimony. It’s probable that in many, if not most, of these cases there was evidence other than the forensic testimony that tended to establish the Defendant’s guilt, which means that in some objective sense their conviction was not wrongful. The problem that this information creates, though, is that each of the Defendants in these cases was arguably denied their right to a fair trial because one of the more important witnesses testifying against them was, essentially, not testifying truthfully and because their defense counsel was not made aware of the fact that the scientific conclusions being testified too were not supported by the evidence, something which is hard for defense attorneys to figure out to begin with since their budgets are far less generous than those of the prosecution. Depending on the nature of the testimony, this would arguably be grounds for a new trial in each case in which tainted evidence was presented to the jury. At the very least, it is likely to lead to a flood of motions from attorneys for people convicted during the time period at issue in the report, and in many of those cases it may well be the case that a new jury will find reasonable doubt.
As with the numerous stories we have heard in recent years about men and women who have spent years or even decades in prison, and even on death row, only to have newly discovered evidence, or evidence that was previously ignored, established with certainty that they were innocent, news like is something that would seem to be yet another argument against the death penalty. The problems are familiar enough that they don’t need to be discussed in detail. Indigent defendants do not get the same representation that wealthy ones do. Minority Defendants are generally treated more harshly than non-minority Defendants. And, as this report reveals, prosecution witnesses either testify to outright falsehoods or engage in what is called a “testi-lie.” While the rules of the court system are biased to protect Defendant’s rights, the reality of criminal justice is that the prosecution almost always has the advantage. Our justice system is not perfect, and given that it was established and is run by human beings it is never going to be, but when it is given the power of life and death the kind of uncertainty and potential for abuse and dishonesty that we’re talking about here is, at least from my perspective, reason enough to deprive it of the power to kill people. Yes, it’s true that someone who is wrongfully convicted and sent to jail could spend years in prison before the truth is revealed, or they may even die in prison. However, at least in that situation they are still alive and able to walk out the door, and they can be compensated monetarily for what was done to them. You can’t say the same thing about someone who’s dead, and for that reason alone execution is something that we should join the world in recognizing as unnecessary and, indeed, barbaric.
A while back Radley Balko did a series on the flaws of bit mark analysis. A worthwhile read. http://www.washingtonpost.com/news/the-watch/wp/2015/02/13/how-the-flawed-science-of-bite-mark-analysis-has-sent-innocent-people-to-jail/
It’s Obama’s fault.
…But it is strongly indicative, since you don’t need to frame people when you have real evidence.
Seriously? You went there?
On what evidence do you base this assertion of “probable”? It is probable that evidence is more likely to be manufactured or invented in cases where the prosecution knows their case sucks. It is probable that decisions about whom to frame were no more accurate than decisions about whom to prosecute. It is highly probable that non-white defendants were much more frequently framed than white defendants.
I understand that Republicans in general are OK with framing the accused or otherwise dispensing with due process, because they really think the accused wouldn’t have been accused if they weren’t guilty of something. I had hoped for better from you.
BWAHAHAHAHAHAHAHAHAHAAA….. Here’s a hint guys, you can’t undo an injustice. The best you can hope for is to mitigate it, but there is no amount of money that can make up for all the missed birthdays, graduations, bed time readings, etc.
Hair analysis, like bite marks and so much other “forensic science” is neither forensic or science. It is in fact little better than reading tea leaves. There is precious little peer reviewed experimentation behind much of it, and no independent certifying authority over it. The dentist in AL said he was a “bite mark expert” and so he was.
Lastly, but certainly not least, follow the money. As long as forensic “experts” get their funding from police departments and prosecutors, they are going to have to answer to police and prosecutors and feel a need to give them the answers they want. That is not corruption, that is human nature.
@DrDaveT:
I understand that Democrats in general are OK with framing the accused or otherwise dispensing with due process, because they really think the accused wouldn’t have been accused if they weren’t guilty of something.
Ok, I fixed it for you. Some how though it really seems to be just as bigoted this way as it was the other way.
But then there is this disturbing piece:
http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french
What isn’t a problem is how more and more people are being confronted by the fact that our criminal justice system is fatally flawed. And that is the beginning of an answer.
it’s possible that that’s true — but where do you get the information and evidence on which to base your claim that it’s “probable”? This is nothing but a fact-free assertion, a wild-ass guess dressed up with the patina of fake certainty.
My guessed probability is the same as a coin toss really. Then again I don’t really know much about law statistics.
Cry, the Beloved Country.
@Another Mike:
Are you really completely ignorant of the history of legislation introduced by the various political parties, with respect to due process, burden of evidence, standards of evidence, etc.? Of the campaign rhetoric of the candidates from those parties? Of their election platforms? There has been a sharp and obvious distinction between Democrats and Republicans for 50+ years now. Republicans have uniformly favored making it easier to imprison and execute people; Democrats have uniformly (with the exception of the Patriot Act) favored making it harder to imprison and execute people.
There are only two possible bases for the Republican platform — either they are OK with convicting quite a few innocent people in order to make sure we get as many guilty ones as possible, or they don’t believe innocent people get accused. I was going with the latter (more charitable) interpretation, but I’ll believe you if say it’s really the former.
I am betting that the experts will never be charged with murder or even manslaughter.
@DrDaveT:
Ok, I’m willing to be educated. Link me to the most egregious law the Republicans have passed that you think hinders the administration of justice.
Don’t forget the Brandon Mayfield case after the Madrid bombing in 2004. The Spanish authorities sent the FBI a partial fingerprint and they identified Mayfield. The Spanish did not think it was a match but Mayfield was arrested anyway and spent 2 weeks in confinement. It was only after the Spanish made the correct identification and this was picked up by the international press that Mayfield was released. He eventually reached reached a 2 million dollar settlement with the FBI.
When you’re rewarded for number of convictions versus actually finding the truth this is what should be expected.
Oh, c’mon. The science is settled. These are just hair deniers……..
@Another Mike: It wasn’t a Democratic Texas Governor who knowingly allowed an almost certainly innocent father to be executed based on junk fire science, then fired the members of the committee assigned to investigate what had happened when they were close to issuing a report. And it wasn’t the crowd at Democratic presidential primary debate who enthusiastically cheered him when he bragged about how many people had been executed on his watch in Texas.
Now, if you are only claiming that unjust executions have occurred under administrations of both parties, that is a reasonable point which supports getting rid of the death penalty.
@DrDaveT: It is not necessarily about framing. In many cases I think there is just a confirmation bias – after the BS “evidence” abut hair came back to the investigators they focus on that individual, and view any circumstantial evidence with an assumption that they are closing in on the perpetrator. I am not denying corruption or framing happens, I just think it is sometimes hard to distinguish from garden variety incompetence.
@Another Mike:
It’s not just about successfully-enacted legislation; it’s also about campaign rhetoric and party alignment — and the appointment of Supreme Court justices who would go on to issue rulings undermining those of the Warren court in the ’60s. More recently, decisions like Salinas v. Texas (decided 5-4 along party lines) have continued that.
This is a pretty good overview of the history.
@DrDaveT:
This is not a clear cut case in my mind, and I take no stand on it. I will say that if I were sitting on a jury and the prosecutor tried to tell me that the defendant was silent in answering a question and that was proof of guilt, I would think that he lacked real evidence. It seems though that forensics linked the gun to the crime, and I assume that there was evidence linking the gun to the defendant.
I will read the other link knowing that this organization’s purpose in being is attacking the “hard right” on crime. I may learn something useful nonetheless.
I have to issue a little mea culpa. Just last week here at OTB, when we were shown the list of countries with the most executions, I partly defended the United States on the basis that we probably had more meaningful trials than most of the those other countries.
I stand corrected.
@Another Mike:
Oh, I think in that particular case the other evidence was strong. I cite it only as an example of a Supreme Court decision (along party lines) that has made it easier for prosecutors to convict people. That ruling applies across the board now; not just in cases like Salinas where there was independent strong evidence. Any poor schmoe who gets his comments and silences out of sequence prior to receiving his Miranda warning can be taken to have self-incriminated.
@DrDaveT:
“Frame” – strong choice of words.
Has the Innocence Project accused the FBI of “framing” anyone on the basis of microscopic hair analysis?
IMO “framing” suggests the conscious and deliberate intent to create false evidence. It also strongly hints at a conspiracy between the FBI expect and the prosecution. Has anyone reviewing these cases over the past several years made such an allegation?
@Bob @ Youngstown:
I used the word provocatively, but I think it applies. Surely lying (knowingly) under oath as an expert witness counts as “the conscious and deliberate intent to create false evidence”…
“Another Mike”, you win the comedy contest for funniest line of the year so far on these blogs (minus everything Jenos contributes) when you wrote:
“I’m willing to be educated”…..coffee through nose time. You’re phucking hilarious with that one.
Your absurd, disingenious bullschitt about “Link me to the most egregious law the Republicans have passed” is truly insipid.
How about all the Laws wingnuts have WANTED to pass but for Dems stopping their insanity?
A list too long to ponder and a waste of time since anyone with half a brain realizes the basic premise that Dems generaly have a distrust of LE while wingnuts give blow jobs to anyone with a badge is usually true.
@the Q:
So you come here to OTB comments, a stronghold of your ingroup, to mock a member of your outgroup who happens to stray here occasionally. What do you hope to achieve? DrDaveT offered two references, one of which I read and one of which I am in the process of reading. Neither reference is likely to change my views, and no doubt he knows that, but in some small way it does promote understanding. I do not recognize your name, but know where you are coming from, so let’s agree to not waste each others time.
Another Mike, whats hilarious is that you are actually serious in wanting proof that your absurd statement is indeed true.
That somehow in your twisted reading of history, you need “proof” that wingnuts are not somehow deranged when it comes to sucking up to law enforcement and that the Dems are just as sychophantic.
How else to parse this “Link me to the most egregious law the Republicans have passed that you think hinders the administration of justice”
How about the disparate mandatory sentencing laws on cocaine vs. crack promulgated by wingnuts which wiped out almost a whole generation of young African American males in the 80s and 90s? I guess this didn’t “hinder the administration of justice” in your book.
Oh, one last thing Another Mike, that Anti Abuse Law of 1986 which contained these disparate sentences came under attack almost immediately. 1995, the U.S. Sentencing Commission concluded that the disparity created a “racial imbalance in federal prisons and led to more severe sentences for low-level crack dealers than for wholesale suppliers of powder cocaine. … As a result, thousands of people – mostly African Americans – have received disproportionately harsh prison sentences.”
Despite numerous attempts to repeal or amend the law, it took the Dem Congress of 2010 to finally pass the Fair Sentencing Act to get rid of many of the odious elements of the wingnut bill.
Geez Another Mike, let me make it simple for you. Wingnuts never voted to change a law which they introduced and which “hindered the administration of justice” and the Dems finally had the votes with their short lived majority in Congress and changed it.
So what is your rebuttal as if I give a schitt.
@DrDaveT: @DrDaveT:
As I understand it the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project have been working with the FBI to review these cases.
Have they, NSDCL and or the Innocence Project, asserted that the FBI expert’s testimony was perjury? Have they claimed that the expert’s intent was to “frame” a defendant?
What would motivate a forensics expert to perjure himself? Unless the expert had personal animus towards the defendant, there is likely a third party – a co-conspirator. Has the NADCL or the Innocence Project claimed or filed criminal complaints against any experts or conspirators?
The point is that “framing” is a criminal act, one that the NADCL would not likey ignore.
@Bob @ Youngstown:
Not to my knowledge. Their investigation is still ongoing.
Doug used the verb phrase “exaggerated or misstated evidence” in his lede, which led me to assume that the linked stories actually supported that claim. Following the links, I don’t see any direct allegations of intent to deceive. If it turns out there wasn’t any, I’ll certainly stop using the word ‘frame’.
@Another Mike:
I think what “the Q” is trying to say is that you are quite obviously unwilling to be educated.
@DrDaveT:
My impression is that the expert’s testimony had claimed that the certainty of a match was greater than some scientific studies would support. Apparently the root cause the absence of a standard of uncertainty.
Example: Expert testifies that hair samples collected at crime scene match those of the defendant.
Prosecutor asks: ” How certain is your anaylsis?”
Expert says: ” one chance in 20,000 that a positive match is a false”.
Defense attorney stipulates or does not challenge the expert on the match accuracy. The defense should be asking if the 20,000 number is an established and accepted standard amongst all forensic labs.
Subsequently (particularily with DNA anaylsis to act as reference) it turns out that the chance of a false positive is significantly higher. (I’ve used 20,000 for illustrative purposes only)
@the Q:
Do you not know that the Anti-Drug Abuse Acts of 1986 and 1988 were introduced by Democrats and passed with virtually no opposition? Do you not know that the Fair Sentencing Act was passed by voice vote with bipartisan support? People change their minds based upon experience.
You might think about toning down the hatred and dropping the wingnuts thing. Name calling lends no strength to an argument. Anyway, on this issue I am probably on your side.
I am pretty close to taking the position that we should drop all laws against drug use and attack the problem from the angle of persuasion, education and treatment.
@Bob @ Youngstown:
Money, and the desire to stay on the good side of the cops and prosecutors.
@the Q: A couple of theories:
1) “The Q” is a sock puppet for either wr or Cliffy, as he/she/it is virtually indistinguishable from those two. But that’s no big deal; we have it from Word of God around here that sock-puppetry is acceptable, as long as the site owners find it amusing.
2) “The Q” is a sock puppet of “James P,” who has decided his latest trolling would be along the lines of “if you can’t beat ’em, join em’ and is doing a perfect impersonation of the two aforementioned bozos.
3) “The Q” is actually a newcomer here, and thinks that the one thing this site needs is yet another incredibly rude, insulting, and stupid leftist. Oh, and that it’s his/her/its job to make certain that there is no polite disagreement; those who disagree with the leftist Usual Gang Of Idiots have some kind of moral obligation to be as rude and crude and vulgar as…. well, as “The Q” is.
But back to Another Mike’s point… the Michigan case is pretty damned scary. It was a deliberate attempt to target people purely for their political beliefs, using classic police-state dictatorial tactics, fascism acting under color of law against their political opponents. This is Nixon’s “enemies list” taken to an Nth degree. And if there has been a corresponding move put forth by the right, I am not aware of it.
@DrDaveT:
The guy who, while claiming to be non-aligned politically, also has asserted on several occasions that there are no circumstances where he can justify voting Democratic? Why?
@Another Mike: I’m failing to see the comparison between presumtion of guilt because of being arrested and trumping up charges on people who appear to be political enemies. But if you want to make the assertion that the two types are alike because Republicans routinely trump up charges against people, I can live with that.
@Just ‘nutha’ ig’rant cracker: It’s because there isn’t an overt political angle behind “he’s probably guilty, or at least guilty of something, so we can cut some corners here.” That can be (charitably) explained through laziness.
What happened in Wisconsin, though, that’s just pure evil. It’s like what happens in Texas (the Tom DeLay and Rick Perry prosecutions) turned up to 11.
@Rafer Janders:
So a conspiracy then. Has any conspiracy been suggested or alleged?
@Bob @ Youngstown:
No, not a conspiracy. Ordinary human nature. I don’t mean “money” in the sense that they were explicity paid off, I mean money in the sense that their continued employment, whether working directly for law enforcement or as part of contracted outside labs, depends on the good opinion of the police and prosecutors, and so whether consciously or not, they’ll feel under presssure to produce results that the police and prosecutors like.
@Bob @ Youngstown:
As I understand what Rafer said, no conspiracy is required. Rational self-interest on the part of people who wish to continue earning “expert witness” stipends would be enough.
@DrDaveT: I’d quibble on “rational.” I’d say “short-sighted” and “unprincipled” and “lazy.”
But yeah, there is a bit of cynical self-interest at play there. And it doesn’t require any grand conspiracy.
@DrDaveT:
Suggests that most all “expert” testimony should be discredited as being self-promoting. Which brings me back to the question: Did defense lawyers challenge the FBI experts assertions of accuracy and probability ? And if not, why not?
@Bob @ Youngstown:
No, it merely suggests that most expert testimony should at least be challenged on the basis of self-interest. If it’s truly expert, it can resist the challenge.
I don’t know, but this sounds like a valuable research project for you.
@Rafer Janders: I don’t know, but this sounds like a valuable research project for you.
Considering your opinions expressed on this thread, I’d suggest it’s an even more valuable research project for you. Think about how much stronger your arguments would be, if you had that information readily at hand.