DOJ and FBI will review thousands of convictions for flawed forensic evidence

The Wall Street Journal is reporting that the Justice Department and FBI will review thousands of cases to determine whether any defendants were wrongfully convicted as a result of flawed forensic evidence, including cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985.  I searched the DOJ’s website for the announcement, but couldn’t find it.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled….

There are no details on how the review will be conducted, or what the DOJ’s standards would be for determining if a person was wrongfully convicted based on the flawed evidence:

The Post reported in April that hair and fiber analysis was subjective and lacked grounding in solid research and that the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate. But bureau managers kept their reviews limited to one agent, even as they learned that many examiners’ “matches” were often wrong and that numerous examiners overstated the significance of matches, using bogus statistics or exaggerated claims.

Details of how the new FBI review will be conducted remain unclear. The exact number of cases that will be reviewed is unknown. The FBI is starting with more than 10,000 cases referred to all hair and fiber examiners. From those, the focus will be on a smaller number of hair examinations that resulted in positive findings and a conviction.

It also is unclear whether the review will focus only on exaggerated testimony by FBI examiners or also on scientifically unfounded statements made by others trained by the FBI, or made by prosecutors. Also unclear is at what point government officials will notify defense attorneys or the Innocence Project.

Considering that the FBI and DOJ reportedly knew about the flawed evidence for years and did nothing until they started getting hammered by the news media, this looks like nothing more than PR damage control by the Department.  Any meaningful review would need to be conducted by an independent agency not affiliated with law enforcement, and I doubt that will happen.

In 2009, a National Academy of Sciences panel, chartered by Congress, found that there were serious problems with the state of forensic evidence used in courtrooms – there is a lack of oversight and standards in crime labs and much of what has been routinely accepted as scientific evidence in the courtroom may be unreliable:

Far from infallible, expert comparisons of hair, handwriting, marks made by firearms on bullets, and patterns such as bite marks and shoe and tire prints are in some ways unscientific and subject to human bias, a National Academy of Sciences panel chartered by Congress found. Other techniques, such as in bullet-lead analysis and arson investigation, survived for decades despite poorly regulated practices and a lack of scientific method.

Even fingerprint identification is partly a subjective exercise that lacks research into the role of unconscious bias or even its error rate, the panel’s 328-page report said.

Advances in DNA testing nationwide, where DNA testing is available post-conviction, has revealed errors in non-scientific forensic evidence and faulty expert testimony that has led to wrongful convictions.

Since 2002, failures have been reported at about 30 federal, state and local crime labs serving the FBI, the Army and eight of the nation’s 20 largest cities.

Advances in DNA testing are exposing errors at unexpected rates. In November, researchers with the Urban Institute reported that new DNA testing appeared to clear convicted defendants in 16 percent of Virginia criminal convictions between 1973 and 1988 in which evidence was available for retesting.

A 2009 study of post-conviction DNA exonerations — now up to 289 nationwide — found invalid testimony in more than half the cases.

These are only the cases where DNA is available to test – rapes or murders where biological evidence is left at the scene which is estimated to be less than 20 percent of criminal cases.  In other cases where the state relies solely on what may be questionable forensic testimony, there is no remedy and there is no way for the wrongfully convicted to prove their innocence.

h/t Gamso, Wrongful Convictions Blog, and NPMRP

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