The homicide convictions of at least five men in Maine have been flagged as potentially flawed as a result of a massive investigation that concluded an FBI forensic lab had overstated evidence used in cases nationwide.

The FBI inquiry, which began in 2012, focused on roughly 3,000 homicide convictions – including 35 death-row cases – from the 1980s and 1990s in which analysts from the FBI’s hair and fiber unit may have overstated their certainty that hair samples found at crime scenes were a match.

Frank Fournier, sentenced to 50 years in prison for murder. Department of Corrections photo Roland White, sentenced to 60 years in prison for murder. Department of Corrections photo Phillip Willoughby, sentenced to life in prison for murder. Department of Corrections photo Virgil Smith, sentenced to 36 years in prison for arson and 58 years on five counts of murder. Department of Corrections photo

The five convicted men in Maine, four of whom are still at the Maine State Prison in Warren, were sent letters either last fall or in January informing them that FBI analysts in their cases may have similarly presented flawed or overstated evidence related to hair or fiber analysis.

The letters do not mean that the men were convicted on that FBI evidence alone, but they have caused attorneys for at least two of them to begin a careful review of trial testimony from decades ago to see whether they could challenge the men’s convictions.

For Frank D. Fournier, who has served 27 years of a 50-year sentence for murder in the 1987 shooting of a man in Portland, the FBI testimony was a key part of his trial. Had the FBI’s analysis of blood evidence left intermingled with hair in the broken crystal face of the victim’s wristwatch been different, Fournier could have been convicted of a lesser charge of manslaughter or acquitted, said his attorney, Thomas J. Connolly, who represented Fournier at trial and is still in contact with him.

“Frank is going to have to show that it impacted the outcome of the trial,” Connolly said in an interview last month.

But that may prove difficult if not impossible, Connolly said, because the evidence that had been so crucial at Fournier’s trial no longer exists after so many years.

“They destroyed all of the evidence, so he can’t do an independent investigation to see if it did have an impact,” Connolly said.

CERTAINTY OF EVIDENCE OVERSTATED

The Maine Attorney General’s Office sent letters to four of the five men here whose cases had been identified by the U.S. Department of Justice as potentially flawed. The Department of Justice sent a letter directly to an attorney for the fifth man, who has since contacted prosecutors here.

“Thus far in the state of Maine, five homicide cases have been identified,” said Deputy Attorney General Lisa Marchese, who oversees all of the state’s homicide cases. “To my knowledge, hair testimony was not the pivotal issue in the cases.”

Marchese and Assistant Attorney General Donald Macomber, who sent the letters to the convicted men, released all five names to the Portland Press Herald during an interview last month.

Macomber said that in each of the five trials, an FBI analyst testified that hair evidence could be associated with a specific individual to the exclusion of all others, even though that type of testimony exceeded the science of the time.

Macomber said Maine authorities have not conducted their own research into the old cases, but have instead allowed each of the five convicts to respond within a year by filing a petition with the courts for a case review.

The five cases in Maine represent only a fraction of cases nationally in which 26 of 28 analysts from an elite FBI unit used microscopic analysis alone as the basis for conclusions made in trials in the 1980s and 1990s – before mitochondrial DNA analysis was first routinely used in criminal cases beginning in 2000. The FBI announced those details in a joint statement last week with the Department of Justice and two independent groups that helped spur the review, the Innocence Project and the National Association of Criminal Defense Attorneys.

As of last month, the government had reviewed about 500 of the 3,000 cases it identified and discovered that FBI analysts made erroneous statements in nearly every case that went to trial, the groups said April 20 in a media release.

In the death-row cases, nine defendants have been executed and five died of natural cases while their cases were being appealed. The states with capital cases are Arizona, California, Florida, Indiana, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee and Texas.

The FBI and Department of Justice have since vowed to work with the Innocence Project and National Association of Criminal Defense Attorneys to conduct an independent investigation of the FBI’s laboratory practices to see how this happened and to review the old cases.

THE FIVE MEN AND THEIR CRIMES

The men in the five Maine cases are all still alive. They are:

• Fournier, 69, who received a 50-year sentence on March 11, 1988, in the death of 20-year-old David Mooers. Fournier shot Mooers in the back of the head during a scuffle in 1987 in Fournier’s apartment on Munjoy Hill.

• Ernest Allard, 55, who has been released from prison after serving a 23-year sentence for manslaughter. He beat to death 19-year-old Lisa Scott, who was eight months pregnant, and threw her into the ocean. Her body was found April 29, 1987, on East End Beach in Portland. Allard was sentenced on July 1, 1988.

• Roland R. White, 52, who was sentenced on Aug. 30, 1991, to serve 60 years for murder. In 1990 he brutally beat to death his 29-year-old girlfriend, Monika Malcolm, using seven different weapons after sexually assaulting her with a bottle. He led police to the murder scene at 690 Congress St. in Portland after calling them to report he had killed her.

• Phillip Willoughby, 52, who was sentenced to life in prison on May 8, 1985, for murder, kidnapping and robbery. He abducted a 21-year-old store clerk, Paula Roberts, during a robbery in Augusta on Dec. 2, 1983, and left her body several miles away near the State House. Willoughby was tried after his stepbrother, David Willoughby, was acquitted of the same crime.

• Virgil Smith, 40, who was sentenced on Sept. 24, 1994, to 58 years in prison for murdering four people in a Portland arson. The 1992 fire at 215 Congress St. on Munjoy Hill killed Joseph Packard, 32, Marjorie Salazar, 20, Kendra Salazar, 10 months, and Thomas Curlew, 25.

VALUE OF THE HAIR TESTIMONY

Smith’s attorney, Matthew Nichols, said he received a letter directly from the Department of Justice last September informing him that Smith’s case had been flagged because of FBI fiber analysis testimony at his trial. Nichols said he informed his client and the Attorney General’s Office.

He said he also requested a copy of the transcript of Smith’s trial, roughly 1,800 pages, and plans to compare that to the Department of Justice’s report about flawed evidence before deciding what to do next.

“We’re waiting to get this report and independent scientific review and compare it to the transcript and go from there and see if it’s real exculpatory information,” said Nichols, who also represented Smith at trial.

Marchese prosecuted the case against Smith when she was an assistant attorney general and said she doesn’t think the recent FBI revelations will affect Smith’s convictions.

“The hair and fiber analysis was not the backbone of the case,” Marchese said.

In Fournier’s case, no one denies that he shot Mooers during a scuffle in Fournier’s apartment. But Fournier has maintained from the start that he acted in self-defense and that the gun discharged accidentally when Mooers reached back to where Fournier had a gun against the back of his head.

“I am innocent,” Fournier said at his sentencing hearing in the Cumberland County Courthouse 27 years ago.

The Department of Corrections refused to make Fournier available for an interview at the state prison in Warren. Corrections Commissioner Joseph Fitzpatrick denied an appeal by the Portland Press Herald after a department spokesman first rejected the interview request.

Connolly, Fournier’s attorney, said the hair and blood evidence inside Mooers’ shattered watch face shows that Mooers had his hand behind his head at the moment he was shot, causing the gun in Fournier’s hand to discharge accidentally, as the defendant claimed.

“He never said he didn’t shoot. That was never the issue. It was the circumstances in which it came down. That’s why the broken watch and the analysis of the hair and fibers was so important,” Connolly said.

On the night of the shooting, Fournier had been drinking at a neighborhood bar when he learned in a telephone call that Mooers was inside his Mabel Street apartment.

“He gets over there and a fight ensues, and in the fight Mooers winds up on the floor and the gun gets put to the back of Mooers’ head. And it gets discharged. And there’s no doubt about that, the blood splatter, the location of the body. All the scene evidence. The contact wound, it was clearly a contact wound to the back of the head,” Connolly said.

Connolly said his argument at trial was that the hair fibers in Mooers’ watch proved that Mooers had the watch against the back of his own head when it shattered.

Connolly said the FBI analyst initially testified that Mooers’ reaching back could have caused the gun, which had a light trigger pull, to discharge and crush the watch in the process. But the analyst later changed his testimony.

What was critical in the FBI analyst’s testimony was not about Mooers’ hair in the watch, but about whether the blood in the watch got there by dripping or splattering, Connolly said.

IMPACT ON THREE OTHER CASES

In the other three cases, it is unclear whether Allard, White or Willoughby will challenge their convictions.

Connolly also represented Allard at his trial. He said Allard is already free, and they haven’t discussed the case.

One of White’s attorneys, William Maselli, said he didn’t think hair evidence would make any difference in whether White was convicted.

“It didn’t seem to me that that evidence would be very important,” Maselli said. “There was really no question of identity in this case.”

Willoughby’s attorney, Ronald Bourget, did not return a phone message seeking comment.

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