FBI Scandal: Forensic FBI Experts Give False and Flawed DNA Evidence To Get Convictions

This is very bad and it’s going to get worse. Yesterday, the Federal Bureau of Investigation and the U.S. Department of Justice finally came forward and admitted that the FBI forensic evidence provided in countless criminal trials over the past two decades has in almost every single case been flawed and unreliable if not downright false and untrue.

Read the April 2015 FBI Press Release here.

Read the April 2015 Joint Statement by the FBI and the Justice Department here.

FBI Forensic Evidence Scandal

The FBI experts took the stand time and time again, and almost 100% of the time, spun things. It didn’t matter which individual expert was testifying here. This is a system-wide problem, and it’s been going on for years. They would testify about hair found at a crime scene and use that hair analysis to get a conviction.

Didn’t matter about scientific accuracy, didn’t matter about challenges and concerns being voiced about forensic results in this area. Apparently, getting that conviction was everything, the only thing, that counted.

FBI Forensic Experts Used Dog Hair to Get Conviction

How bad is this? Well, in one case the FBI lab guy testified on the stand about hair evidence in order to convict the defendant. The truth: the hair that was being used wasn’t from the defendant, it wasn’t even from a human being. It was a dog’s hair. See, “The FBI convicted this man using hair analysis. It was a dog’s hair,” published yesterday in Fusion.

This man was innocent. He served 28 years behind bars based upon the Dog Hair testimony from the FBI expert. By the time the Innocence Project and others had worked to confirm his innocence, he had already been released from prison.

The story of Santae Tribble, arrested at the age of 17 years, would be enraging enough if it were a single case of injustice. But NO. Tribble’s case looks to be one in hundreds or even thousands. THOUSANDS.

Congress Reacts

Yesterday, Congressional representative from Texas Eddie Bernice Johnson (D-TX) (of the House Science Committee), joined with Senator Patrick Leahy (D_VT) over in the Senate’s Judiciary Committee, and got some media coverage for their joint outcry against the recent revelations about the Federal Bureau of Investigation (FBI) forensic evidence experts. Leahy is calling it “gross misconduct.”

That description, from a criminal defense perspective, isn’t strong enough.

What Congress will do about this FBI scandal has yet to be seen. What thousands of people setting behind bars after being convicted based upon FBI expert testimony is also unclear — but you can bet that lots of appellate lawyers are considering the options here. Convicted people in both federal and state cases are impacted here. It’s a HUGE mess and it’s not possible to comprehend or count the injustices that have occurred.

How We Know The FBI Did Very Bad Things: Shocking Expose by The Innocence Project and NACDL

Light has been shed on the truth here by a report released by the National Association of Criminal Defense Lawyers and The Innocence Project, and it’s so huge and so bad that lots of people are still trying to grasp how truly terrible and far-reaching this revelation is for convicted men and women in this country as well as for the justice system itself.

We know that the FBI has put convictions first for decades now, even though it meant that FBI forensic experts took the stand for years and years (think 20 years now) and provided flawed and wrong forensic evidence regarding DNA and hair analysis.

This FBI crime lab evidence was trusted by juries and it was used to put people behind bars. Some of these people have already been EXECUTED. Some have died. Others have already served their sentences in federal or state prisons and been released.

Now, both the FBI and the Department of Justice have admitted that in almost EVERY SINGLE TRIAL where an expert from the famed FBI forensic laboratory testified gave FLAWED testimony. They did this as:

26 of the 28 FBI experts who analyzed human hair and compared hair in order to point the finger at the defendant, are now known to have testified to help the prosecution in 95% of the cases that have been checked thus far. Thousands of cases are still under investigation here.

It’s going to take years to nail down what has happened here. The FBI hasn’t been cooperative (surprise) — the investigation into their forensic hair analysis began in 1996 and it’s just now that we’re seeing results. Moreover, prosecutors and police aren’t cooperative and those trying to determine what’s happened here are having to fight to get things like court transcripts, etc., from the local folk.

What the FBI is Doing Now

The FBI, shamed and discredited, has responded by taking some action. The federal agency, for example, has offered new DNA testing. The Department of Justice has responded by announcing that it will not object in federal appeals with procedural arguments as these convictions are appealed in the federal cases.

What Prosecutors Are Doing

Right now, it appears that prosecutors across the country are receiving notices from the Justice Department that they may have a conviction on their books that involved the use of this tainted and untrustworthy forensic evidence. Federal prosecutors in the various Offices of the U.S. Attorney General will have to make decisions on what to do here.

The bigger issue, however, is what the various state prosecutors in county offices like the Dallas County District Attorney’s Office or the Office of the District Attorney for Tarrant County will do. Most of these controversies involve FBI forensics used by state prosecutions, not federal ones. And that biological evidence may not be around in the state cases for re-testing or reconsideration. Lots of times, this stuff degrades or gets destroyed.

So, it’s not clear yet what the prosecutors are going to do, given that they have convictions based upon flawed evidence and situations that reek of the violation of basic due process.

Response by Criminal Defense Lawyers

In Texas, criminal lawyers are able to appeal convictions in state prosecutions when the defense can show that state evidence is no longer reliable and sound. This could be because a testifying expert has changed their mind and their opinion from what they testified at trial. It can also be a basis for appeal in Texas when new science demonstrates that the evidence used at the criminal trial was not valid in some way.

Criminal attorneys in Texas and the rest of the country, as well as convicted persons and their loved ones, might also consider their past cases and compare them to the kinds of errors that the NACDL describes as commonly occurring in the FBI forensic testimony. The Innocence Project and the NACDL are identifying cases (Florida seems to have the most right now) but any case where the FBI expert was used by the prosecution bears consideration at this point.

These include the following three flaws in FBI forensic testimony dealing with hair analysis under a microscope:

Error Type 1 by FBI Testifying Expert

The examiner stated or implied that the evidentiary hair could be associated with a specific individual to the exclusion of all others.

Error Type 2 by FBI Testifying Expert

The examiner assigned to the positive association a statistical weight or probability or provided a likelihood that the questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of the positive association that could lead the jury to believe that valid statistical weight can be assigned to a microscopic hair association.

Error Type 3 by FBI Testifying Expert

The examiner cites the number of cases or hair analyses worked in the lab and the number of samples from different individuals that could not be distinguished from one another as a predictive value to bolster the conclusion that a hair belongs to a specific individual.

______________

For more information, read our web resources page on Appeals as well as Michael Lowe’s case results.