“Of 28 exam­in­ers with the FBI Laboratory’s micro­scop­ic hair com­par­i­son unit, 26 over­stat­ed foren­sic match­es in ways that favored pros­e­cu­tors in more than 95 per­cent of the 268 tri­als reviewed so far...”:

Wash­ing­ton Post
FBI admits flaws in hair analy­sis over decades

By Spencer S. Hsu
April 18

The Jus­tice Depart­ment and FBI have for­mal­ly acknowl­edged that near­ly every exam­in­er in an elite FBI foren­sic unit gave flawed tes­ti­mo­ny in almost all tri­als in which they offered evi­dence against crim­i­nal defen­dants over more than a two-decade peri­od before 2000.

Of 28 exam­in­ers with the FBI Laboratory’s micro­scop­ic hair com­par­i­son unit, 26 over­stat­ed foren­sic match­es in ways that favored pros­e­cu­tors in more than 95 per­cent of the 268 tri­als reviewed so far, accord­ing to the Nation­al Asso­ci­a­tion of Crim­i­nal Defense Lawyers (NACDL) and the Inno­cence Project, which are assist­ing the gov­ern­ment with the country’s largest post-con­vic­tion review of ques­tioned foren­sic evi­dence.

The cas­es include those of 32 defen­dants sen­tenced to death. Of those, 14 have been exe­cut­ed or died in prison, the groups said under an agree­ment with the gov­ern­ment to release results after the review of the first 200 con­vic­tions.

The FBI errors alone do not mean there was not oth­er evi­dence of a convict’s guilt. Defen­dants and fed­er­al and state pros­e­cu­tors in 46 states and the Dis­trict are being noti­fied to deter­mine whether there are grounds for appeals. Four defen­dants were pre­vi­ous­ly exon­er­at­ed.

The admis­sions mark a water­shed in one of the country’s largest foren­sic scan­dals, high­light­ing the fail­ure of the nation’s courts for decades to keep bogus sci­en­tif­ic infor­ma­tion from juries, legal ana­lysts said. The ques­tion now, they said, is how state author­i­ties and the courts will respond to find­ings that con­firm long-sus­pect­ed prob­lems with sub­jec­tive, pat­tern-based foren­sic tech­niques — like hair and bite-mark com­par­isons — that have con­tributed to wrong­ful con­vic­tions in more than one-quar­ter of 329 DNA-exon­er­a­tion cas­es since 1989.

In a state­ment, the FBI and Jus­tice Depart­ment vowed to con­tin­ue to devote resources to address all cas­es and said they “are com­mit­ted to ensur­ing that affect­ed defen­dants are noti­fied of past errors and that jus­tice is done in every instance. The Depart­ment and the FBI are also com­mit­ted to ensur­ing the accu­ra­cy of future hair analy­sis tes­ti­mo­ny, as well as the appli­ca­tion of all dis­ci­plines of foren­sic sci­ence.”

Peter Neufeld, co-founder of the Inno­cence Project, com­mend­ed the FBI and depart­ment for the col­lab­o­ra­tion but said, “The FBI’s three-decade use of micro­scop­ic hair analy­sis to incrim­i­nate defen­dants was a com­plete dis­as­ter.”

“We need an exhaus­tive inves­ti­ga­tion that looks at how the FBI, state gov­ern­ments that relied on exam­in­ers trained by the FBI and the courts allowed this to hap­pen and why it wasn’t stopped much soon­er,” Neufeld said.

Nor­man L. Reimer, the NACDL’s exec­u­tive direc­tor, said, “Hope­ful­ly, this project estab­lish­es a prece­dent so that in future sit­u­a­tions it will not take years to reme­di­ate the injus­tice.”

While unnamed fed­er­al offi­cials pre­vi­ous­ly acknowl­edged wide­spread prob­lems, the FBI until now has with­held com­ment because find­ings might not be rep­re­sen­ta­tive.

...

Fed­er­al author­i­ties launched the inves­ti­ga­tion in 2012 after The Wash­ing­ton Post report­ed that flawed foren­sic hair match­es might have led to the con­vic­tions of hun­dreds of poten­tial­ly inno­cent peo­ple since at least the 1970s, typ­i­cal­ly for mur­der, rape and oth­er vio­lent crimes nation­wide.

The review con­firmed that FBI experts sys­tem­at­i­cal­ly tes­ti­fied to the near-cer­tain­ty of “match­es” of crime-scene hairs to defen­dants, back­ing their claims by cit­ing incom­plete or mis­lead­ing sta­tis­tics drawn from their case work.

In real­i­ty, there is no accept­ed research on how often hair from dif­fer­ent peo­ple may appear the same. Since 2000, the lab has used visu­al hair com­par­i­son to rule out some­one as a pos­si­ble source of hair or in com­bi­na­tion with more accu­rate DNA test­ing.

Warn­ings about the prob­lem have been mount­ing. In 2002, the FBI report­ed that its own DNA test­ing found that exam­in­ers report­ed false hair match­es more than 11 per­cent of the time. In the Dis­trict, the only juris­dic­tion where defend­ers and pros­e­cu­tors have re-inves­ti­gat­ed all FBI hair con­vic­tions, three of sev­en defen­dants whose tri­als includ­ed flawed FBI tes­ti­mo­ny have been exon­er­at­ed through DNA test­ing since 2009, and courts have exon­er­at­ed two more men. All five served 20 to 30 years in prison for rape or mur­der.

Uni­ver­si­ty of Vir­ginia law pro­fes­sor Bran­don L. Gar­rett said the results reveal a “mass dis­as­ter” inside the crim­i­nal jus­tice sys­tem, one that it has been unable to self-cor­rect because courts rely on out­dat­ed prece­dents admit­ting sci­en­tif­i­cal­ly invalid tes­ti­mo­ny at tri­al and, under the legal doc­trine of final­i­ty, make it dif­fi­cult for con­victs to chal­lenge old evi­dence.

“The tools don’t exist to han­dle sys­tem­at­ic errors in our crim­i­nal jus­tice sys­tem,” Gar­rett said. “The FBI deserves every recog­ni­tion for doing some­thing real­ly remark­able here. The prob­lem is there may be few judges, pros­e­cu­tors or defense lawyers who are able or will­ing to do any­thing about it.”

Fed­er­al author­i­ties are offer­ing new DNA test­ing in cas­es with errors, if sought by a judge or pros­e­cu­tor, and agree­ing to drop pro­ce­dur­al objec­tions to appeals in fed­er­al cas­es.

How­ev­er, bio­log­i­cal evi­dence in the cas­es often is lost or unavail­able. Among states, only Cal­i­for­nia and Texas specif­i­cal­ly allow appeals when experts recant or sci­en­tif­ic advances under­mine foren­sic evi­dence at tri­al.

Defense attor­neys say sci­en­tif­i­cal­ly invalid foren­sic tes­ti­mo­ny should be con­sid­ered as vio­la­tions of due process, as courts have held with false or mis­lead­ing tes­ti­mo­ny.

...

Note that, back in 2008, FBI inves­ti­ga­tors con­clud­ed that the hair sam­ples recov­ered from a let­ter in the Anthrax case did­n’t match Ivin­s’s hair, which, all things con­sid­ered, is kind of amaz­ing.

There’s an update on a mil­i­tary inves­ti­ga­tion into the acci­den­tal ship­ment live anthrax spores, of the same strain as the one used in the 2001 anthrax attacks, to labs around the US and world over the last twelve years. The lucky recip­i­ents? All 50 states, plus Guam, the U.S. Vir­gin Islands, Puer­to Rico, Japan, Unit­ed King­dom, Korea, Aus­tralia, Cana­da, Italy, Ger­many, Nor­way and Switzer­land:

Military.com
Pen­ta­gon Now Says Army Mis­tak­en­ly Sent Live Anthrax to All 50 States

Sep 01, 2015 | by Richard Sisk

Deputy Defense Sec­re­tary Bob Work has repeat­ed­ly said the scan­dal over the mil­i­tary’s mis­tak­en ship­ment of live anthrax spores around the nation and the world would get worse — and he was right.

The num­ber of labs that received live anthrax has more than dou­bled to 194 since Work and Frank Kendall, the Pen­tagon’s top acqui­si­tion offi­cial, released a report in July on the ship­ments of the dead­ly pathogen from the Army’s Dug­way Prov­ing Grounds in Utah.

The num­ber of states receiv­ing live anthrax also more than dou­bled to include all 50 states and Wash­ing­ton, D.C., plus Guam, the U.S. Vir­gin Islands and Puer­to Rico.

The num­ber of coun­tries that received live anthrax went up from sev­en to nine — Japan, Unit­ed King­dom, Korea, Aus­tralia, Cana­da, Italy, Ger­many, Nor­way and Switzer­land, accord­ing to the Pen­tagon’s updat­ed account­ing of the ship­ments through Sept. 1.

There have been no deaths or seri­ous ill­ness­es report­ed from the mil­i­tary’s 10-year pro­gram to ship anthrax to pri­vate and mil­i­tary labs for test­ing to devel­op vac­cines and detec­tion devices, accord­ing to the Defense Depart­ment.

How­ev­er, at least 31 mil­i­tary and civil­ian per­son­nel were treat­ed with antibi­otics as a pre­cau­tion after a lab in Mary­land dis­cov­ered in May that a sup­pos­ed­ly irra­di­at­ed anthrax sam­ple con­tained live spores.

...

The Pen­ta­gon boost­ed the count on June 10, say­ing it was 68 labs in 19 states and four coun­tries. When the depart­ment issued its 30-day review of the scan­dal on July 23, Work said, “We know over the past 12 years, 86 lab­o­ra­to­ries in 20 states, the Dis­trict of Colum­bia, and sev­en for­eign coun­tries ulti­mate­ly received what were sup­pos­ed­ly inac­ti­vat­ed spores that orig­i­nat­ed at Dug­way.”

Work called the inci­dents at Dug­way and through­out the sys­tem a “mas­sive insti­tu­tion­al fail­ure.” He said then that he expect­ed the num­bers to climb as the Cen­ters for Dis­ease Con­trol inves­ti­gat­ed for pos­si­ble “sec­ondary” ship­ments by the pri­ma­ry labs which received anthrax ship­ments.

Accord­ing to the lat­est Pen­ta­gon count, 88 pri­ma­ry labs received live anthrax and shared it with 106 sec­ondary labs for a total of 194 labs.

The sam­ples were from the so-called Ames strain, a par­tic­u­lar­ly vir­u­lent form of the bac­te­ria used in the 2001 Anthrax attacks. After let­ters con­tain­ing the sub­stance were sent to the offices of news media and U.S. law­mak­ers, five peo­ple were killed and 17 oth­ers were infect­ed. Bruce Ivans, a gov­ern­ment micro­bi­ol­o­gist, com­mit­ted sui­cide after author­i­ties were prepar­ing to charge him in the case.

The Pen­tagon’s review released in July said, “The low num­bers of live spores found in inac­ti­vat­ed DoD sam­ples did not pose a risk to the gen­er­al pub­lic, Nonethe­less, the ship­ment of live BA (Bacil­lus Anthracis) sam­ples out­side of the select agent pro­gram restric­tions (at any con­cen­tra­tion) is a seri­ous breach of reg­u­la­tions.”