The FBI will review thousands of old cases, including some involving the death penalty, in which hair samples helped secure convictions, under an ambitious plan made public Thursday.
More than 2,000 cases the FBI processed from 1985 to 2000 will be re-examined, including some in which execution dates have been set and others in which the defendants already have died in prison. In a key concession, Justice Department officials will waive usual deadlines and procedural hurdles that often block inmates from challenging their convictions.
“This will be critical to giving wrongly convicted people a fair chance at a fair review,” said Steven D. Benjamin, a Virginia attorney who’s the president of the National Association of Criminal Defense Lawyers.
The defense lawyers’ association joined with The Innocence Project, based at New York City’s Cardozo School of Law at Yeshiva University, as well as pro bono attorneys to press for the review.
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The study will focus on whether analysts exaggerated the significance of their hair analyses or reported them inaccurately. Defendants will be notified and free DNA testing offered if errors in lab work or testimony are detected.
“The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented,” declared Peter Neufeld, a co-director of the Innocence Project. “It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles.”
DNA testing can cost several thousand dollars, Innocence Project spokesman Paul Cates said in an interview Thursday.
“There is no reason to believe the FBI Laboratory employed ‘flawed’ forensic techniques,” FBI Special Agent Ann Todd, a spokeswoman for the bureau, said in an email. “The purpose of the review is to determine if FBI Laboratory examiner testimony and reports properly reflect the bounds of the underlying science.”
Todd called microscopic hair analysis “a valid forensic technique and one that is still conducted at the lab” in conjunction with DNA testing. But in some cases, defense attorneys say, lab analysts have overstated the significance of their findings.
In 1981, for instance, an 18-year-old Washington resident named Kirk Odom was convicted of rape and sodomy. At his trial, an FBI analyst testified that Odom’s hair samples and samples taken from the crime scene “were indistinguishable” and that this was very rare. Odom was convicted and served about 22 years in prison. In 2011, he was exonerated by DNA testing that wasn’t available at the time of his original trial.
Odom’s case, along with the cases of two other Washington men who’d also been exonerated by DNA testing after convictions based, in part, on testimony about hair analysis, prompted the broader FBI review.
“The number of cases that involve potential testimony errors is not known, at this time,” Todd said.
Of 310 individuals exonerated through DNA evidence, according to an Innocence Project database, 72 were convicted in part because of microscopic hair evidence.
Some died before they could be exonerated.
In 1986, a jury convicted Army veteran Timothy Brian Cole of raping a Texas Tech University student. A lab analyst testified that there were similarities between Cole’s pubic hair and hair found on the victim. Cole died in prison in 1999, about a decade before DNA testing and the real rapist’s confession exonerated him.
In other cases, wrongly convicted defendants survived their incarceration.
Dwayne Allen Dail was convicted in 1989 of a rape in Goldsboro, N.C., after testimony from the victim, as well as from a North Carolina State Bureau of Investigation forensic chemist. The lab analyst said hairs at the crime scene could have come from Dail, and his views, though not definitive, were heard by the jurors as those of a recognized expert.
Dail was exonerated in 2007 after DNA testing.
Cates, the Innocence Project spokesman, said that “we are hopeful that state crime labs will also recognize their duty” to confirm the accuracy of past lab tests, although the agreement announced Thursday covers only testimony and reports from FBI lab analysts.