By William S. Sessions
6:00 AM EDT, June 10, 2013
In two courts, half a country apart, judges last month grappled with the reliability of testimony and forensic hair evidence analysis that Federal Bureau of Investigation agents provided in criminal trials decades ago. John Norman Huffington, imprisoned nearly 32 years in Maryland, had his conviction overturned by a judge after DNA testing revealed that the hair that was presented as key evidence against Mr. Huffington did not belong to him. Willie Jerome Manning, mere hours from death, won a stay of execution from the Mississippi Supreme Court to give his lawyers time to conduct DNA testing, which they believe could exonerate him. FBI testimony in both cases provided key evidence that led to their convictions.
Most of us are aware of the need for accurate and scientifically reliable evidence to ensure that those guilty of crimes are convicted and properly sentenced, and that those wrongfully convicted are exonerated. In Mr. Huffington's trial for the 1981 murders of two people in Harford County, at a time when DNA testing was not yet available, an FBI agent testified that the microscopic hair analysis was 99.98 percent accurate in determining that hair found in the bed where one victim was killed belonged to Mr. Huffington. This April, DNA testing revealed that the hair samples were in fact not his. In overturning his conviction and ordering a new trial, the judge noted that "due to the substantial weight given to the microscopic hair analysis by the jury … as well as the results of the DNA test [directly contradicting the FBI agent's testimony] … there is a significant possibility that the outcome of [Mr. Huffington's] case may have been different."
In Mr. Manning's trial for the 1992 murders of two college students, an FBI agent testified that microscopic hair analysis could identify a hair sample as belonging to Mr. Manning, to the exclusion of all others. Mr. Manning was convicted in 1994, in part based on the FBI agent's testimony. But such testimony, as a U.S. Department of Justice review found, "exceeded the limits of the science," and therefore the testimony was erroneous and "invalid." Had DNA testing (relatively new at the time) been performed on the hair sample, we would have had far greater certainty about the outcome in Mr. Manning's trial.
These are two examples among the potentially thousands of cases in which the reliability of FBI forensic analysis and testimony, particularly microscopic hair analysis, has been called into serious doubt. In June 2012, after the DOJ made public a decade-old task force report identifying serious flaws in forensic evidence, it announced the review of thousands of cases in which defendants may have been wrongfully convicted. The FBI was right in its concern.
Thanks to its ever-increasing sophistication, DNA testing allows the justice system to accurately inculpate and exculpate criminal suspects. When I became FBI director in 1987, the bureau established a DNA laboratory we hoped to use to establish that a suspect had indeed committed a crime. During my years as a U.S. attorney and federal judge in Texas, rapists and murderers sometimes walked free for lack of biological evidence. I had these cases in mind when we established the laboratory.
The results of the first 100 test cases in 1988 astonished me. In 30 of them, the DNA did not match that of the person charged with the crime.
If FBI forensic analysts and agents knowingly relied on flawed forensic evidence for decades, it is alarming. If men and women such as Messrs. Huffington and Manning still remain in prison, and in some cases on death row, it is intolerable. I commend the FBI for taking the necessary steps to inform defendants and prosecutors in every case where unreliable hair analysis was used. Moreover, I urge state prosecutors and judges who are aware that the FBI provided potentially unreliable evidence or testimony to work with defense counsel in those cases to ensure the accuracy of the verdicts, including allowing for additional forensic testing of evidence, especially DNA testing, and the pursuit of wrongful conviction claims. When evidence used to convict an individual is discovered to be unreliable, justice requires that we review that case, no matter how long ago the conviction occurred.
For John Huffington, unreliable forensic evidence led to 32 lost years; for Willie Manning, it may lead to far more grievous harm. The DOJ has taken steps to remedy reliance on repudiated hair analysis techniques. Unfortunately, there are many individuals still in jail, possibly convicted wrongfully due to faulty, and highly influential, FBI testimony. These individuals, like Messrs. Manning and Huffington, must be afforded the opportunity to prove their innocence.
William S. Sessions served three U.S. presidents as director of the FBI and was previously chief judge for the U.S. District Court for the Western District of Texas, and a United States attorney. He is a member of The Constitution Project's board of directors. His email is email@example.com.
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