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#394 Wrongful Conviction: Junk Science - Hair Microscopy Evidence · Wrongful Conviction

0:01
Speaker 1: Hey folks, Kate Judson here, I'm a lawyer and the
0:04
Speaker 1: executive director of the Center for Integrity and Forensic Sciences.
0:10
Speaker 1: We're back with another episode of Junk Science, a series
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Speaker 1: we first released in twenty twenty, but these stories are
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Speaker 1: just as relevant as ever. This week's episode focuses on
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Speaker 1: hair microscopy, a forensic discipline that compares hair found on
0:25
Speaker 1: a victim or at a crime scene to the hair
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Speaker 1: of a suspect. The problem, and from the title of
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Speaker 1: the show, you know what I'm going to say, The
0:34
Speaker 1: problem is that hair microscopy is junk science. Even with
0:38
Speaker 1: a microscope, it is next to impossible to accurately prove
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Speaker 1: that two hairs came from the same person without DNA testing.
0:49
Speaker 1: Since this episode aired in twenty twenty, there was another
0:52
Speaker 1: exoneration on a hair microscopy case that made big headlines.
0:59
Speaker 1: In twenty one one, Anthony Broadwater was exonerated of the
1:03
Speaker 1: crime of raping author Alice Sebold, who's best known for
1:07
Speaker 1: the novel The Lovely Bones. Anthony Broadwater was convicted of
1:12
Speaker 1: the rape in nineteen eighty two with eyewitness testimony and
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Speaker 1: hair microscopy, two methods we now know are flawed. At
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Speaker 1: his exoneration hearing, the judge said that he was deeply
1:23
Speaker 1: sorry that this never should have happened. Anthony Broadwater broke
1:27
Speaker 1: down in tears. The wrongful conviction that had ruined his
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Speaker 1: life was overturned, and his innocence finally validated. Unfortunately, we
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Speaker 1: don't know how many other Anthony Broadwaters are out there.
1:48
Speaker 2: Washington, DC, A muggy summer day finally starts to cool
1:52
Speaker 2: as night falls. Street lights turn on, Crickets chirp, there's
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Speaker 2: the soft jingle of the tags on a dog caller.
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Speaker 2: A black poodle walks up someone's porch steps, sniffs around.
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Speaker 2: The dog leaps back down the stairs when its owner
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Speaker 2: calls its name. A few hours later, on those same
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Speaker 2: porch steps, the man who lives there slowly walks up,
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Speaker 2: and a masked figure walks up behind him. There's a gunshot.
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Speaker 2: Someone screams. The shooter makes a run for it, ripping
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Speaker 2: a stocking mask from his face. It lands on a
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Speaker 2: porch step as he disappears down the street into the night.
2:34
Speaker 2: You live down the street from where the gunshot went off.
2:37
Speaker 2: Three days later, you're hanging out with your girlfriend and
2:40
Speaker 2: your mom's basement sitting on the couch watching TV. Your
2:45
Speaker 2: mom is upstairs cleaning up after dinner, and then there's
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Speaker 2: a knock at the door. You hear someone introduce themselves
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Speaker 2: as an officer, officers something or other, and damn it,
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Speaker 2: you think, and your teenage mind you figure he must
3:01
Speaker 2: be there about the parking ticket you got a few
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Speaker 2: weeks ago and didn't pay yet.
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Speaker 3: Your mom's gonna be pissed.
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Speaker 2: You head upstairs, but they cuff you and take you away.
3:14
Speaker 2: You're brought down to the station and put in a cell,
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Speaker 2: and they tell you that you'll be tried for the
3:19
Speaker 2: murder of your neighbor. The next day you're transferred to
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Speaker 2: the county jail and you're beginning to absorb the shock
3:26
Speaker 2: of it all. The one thing that you can't get
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Speaker 2: past is the filth. It's just terrible in there, everything
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Speaker 2: from the bugs to the food, to the living conditions
3:37
Speaker 2: and the noise. The noise is unbearable. You can hardly sleep.
3:42
Speaker 2: You begin to miss out on things. Your family summer
3:46
Speaker 2: vacation comes and goes. Six months pass. You would have
3:50
Speaker 2: had your ged by now. A year slips by, and
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Speaker 2: then a year turns into a year and a half.
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Speaker 2: Your nieces and nephews, the ones the you helped raise
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Speaker 2: or growing up. You've spoken to them a few times,
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Speaker 2: but they haven't come to visit. Are they thinking that
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Speaker 2: their uncle may have done this? You miss out on
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Speaker 2: the final years of being a care free teen. It
4:13
Speaker 2: seems as though everything's moving on without you. Finally, after
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Speaker 2: two agonizing years, your case goes to trial. You want
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Speaker 2: to get your life back. You didn't kill anyone. You
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Speaker 2: were in that same basement all night when someone else
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Speaker 2: climbed your neighbors steps and ended his life with a
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Speaker 2: single gunshot blast of the head. A few weeks ago,
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Speaker 2: an officer came to your cell and cut some of
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Speaker 2: your hair. Of course, you willingly let them take it
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Speaker 2: because you were sure it would help prove your innocence.
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Speaker 3: As you sit in the courtroom at.
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Speaker 2: Your trial, the prosecutor says that there was a nylon
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Speaker 2: stocking mass found at the scene of the crime. An
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Speaker 2: FBI agent takes the stand for the prosecution and tells
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Speaker 2: the jury, I compare the defendant's hair to the thirteen
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Speaker 2: hairs found on the mask. This agent tells the jury
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Speaker 2: that the defendant's hair is indistinguishable from one of those
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Speaker 2: thirteen hairs. The prosecutor says, there's one chance, perhaps for
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Speaker 2: all we know in ten million, that it could be
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Speaker 2: someone else's hair. This single hair proves critical because it's
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Speaker 2: the only physical evidence that ties you to the homicide.
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Speaker 2: You're told the jury's reached a verdict. They shuffle back
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Speaker 2: into the courtroom, and none of them will look at you.
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Speaker 2: When you hear the word guilty, there's the sudden eruption
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Speaker 2: of uncontrolled sobbing, like the turning on of a spigot.
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Speaker 2: There's the unraveling of your mother in whales. Not my baby,
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Speaker 2: My baby didn't do it. Your ants are crying, your
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Speaker 2: relatives are trying to console each other. There's just a
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Speaker 2: medley of weeping and misery. You feel like you're going
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Speaker 2: to pass out. The room is sideways, and then it's
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Speaker 2: upside down, and then you're all white. All you can hear,
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Speaker 2: all you can see. Everything turns white, and you go numb.
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Speaker 2: You're sentenced to twenty years to life and stay prison,
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Speaker 2: and then there is nothing. Everything goes blank. You do
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Speaker 2: everything you can to prove your innocence. You write letters,
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Speaker 2: study the law, Your father comes to visit you. Just
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Speaker 2: about every single Saturday. But he dies four years after
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Speaker 2: your arrest. Your mom dies two years after that, and
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Speaker 2: you can't go to either of their funerals. You can't
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Speaker 2: help but to think, did this kill them? My wrongful conviction.
6:54
Speaker 2: You sit in your cell, numb most days, and you
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Speaker 2: try to recall little things that will bring some comfort.
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Speaker 2: To smell your mother's cooking, sitting around playing cards with
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Speaker 2: your friends, holding hands with your girlfriend, and your mother's
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Speaker 2: basement watching TV. You live a lifetime in that prison,
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Speaker 2: thirty three long years. It takes all of that time
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Speaker 2: for the district attorney to finally agree to test the
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Speaker 2: DNA contained in the hair that was found on that
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Speaker 2: stalking mask that dropped to the steps of that porch.
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Speaker 2: It turns out the way you knew it would. Your
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Speaker 2: DNA does not match any of those thirteen hairs. But
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Speaker 2: they do figure out who one of the hairs belongs to,
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Speaker 2: and it's not a person. Turns out that one of
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Speaker 2: the hairs they found on that stalking mask, and argue
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Speaker 2: to the jury was a human hair belong to that poodle.
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Speaker 2: When you re enter the world, they say you're free,
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Speaker 2: but are you really? You went in as an eighteen
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Speaker 2: year old boy and came out a fifty one year
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Speaker 2: old man, and you've aged beyond your years. Your fighting
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Speaker 2: an illness caused by the burden of carrying around your
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Speaker 2: innocence for your entire adult life. You die at the
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Speaker 2: age of fifty nine, enjoying only eight free years with
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Speaker 2: what's left of your family. But your death, your suffering
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Speaker 2: is not in vain. After you were found to be innocent,
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Speaker 2: the FBI starts to re examine over three thousand cases
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Speaker 2: where similar evidence was used.
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Speaker 3: They're looking for other.
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Speaker 2: People who, like you, were wrongfully convicted of crimes they
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Speaker 2: didn't commit, people whose lives were destroyed by the junk
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Speaker 2: science of hair comparison analysis. The story you just heard
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Speaker 2: is based on true events of Sante Treble's life. He
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Speaker 2: was wrongfully convicted in nineteen seventy eight, an exonery in
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Speaker 2: twenty twelve. He passed away in July of twenty twenty.
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Speaker 2: This episode is dedicated to him. I'm Josh duban civil
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Speaker 2: rights and criminal defense attorney and Innocent ambassador to the
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Speaker 2: Innocence Project in New York. Even when examined under a microscope,
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Speaker 2: the similarities that can be observed between two hairs are
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Speaker 2: open to a wide interpretation. In other words, there are
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Speaker 2: no definitive traits that can prove with any scientific certainty
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Speaker 2: that a suspect's hair matches a hair found at a
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Speaker 2: crime scene. Yet hair comparison analysis was still being used
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Speaker 2: to falsely identify and convict innocent people up until the
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Speaker 2: year two thousand and today there are still people who
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Speaker 2: are incarcerated that were convicted based on this false evidence.
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Speaker 2: So how did this evidence get admitted into courts in
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Speaker 2: the first place. Turns out, hair my crosscubee was born
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Speaker 2: in the eighteen hundreds, and the methods used to analyze
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Speaker 2: and compare human hairs haven't changed much since. In eighteen
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Speaker 2: sixty nine, a man named John Dorsey was accused of
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Speaker 2: killing his wife by beating her over the head with
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Speaker 2: a club in his own yard in Massachusetts. During the trial,
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Speaker 2: two men claimed that they had seen hairs attached to
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Speaker 2: the alleged murder weapon, and that the hair appeared to
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Speaker 2: be brunette human hair that was the color of mister
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Speaker 2: Dorsey's wife's hair. Mister Dorsey was shocked his wife was brunette,
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Speaker 2: but so were as horses. According to mister Dorsey, the
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Speaker 2: club wasn't a murder weapon. It was just one of
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Speaker 2: many pieces of wood that was set out by the
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Speaker 2: horse stables. The hair and the clubs didn't belong to
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Speaker 2: his wife, but was a hair that had fallen from.
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Speaker 3: His horse's tail.
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Speaker 2: But the court ruled that mister Dorsey couldn't present this
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Speaker 2: account about the horse hair. Meanwhile, the testimony from the
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Speaker 2: men claiming that the hair was mister Dorsey's wife's was permitted.
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Speaker 2: Mister Dorsey was eventually convicted of killing his wife. This
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Speaker 2: was the first time a courd admitted hair comparison analysis
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Speaker 2: as evidence in our legal system, and it definitely wouldn't
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Speaker 2: be the last. Over a century later, animal hair and
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Speaker 2: human hair would again be an issue in the Sante
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Speaker 2: Triple case.
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Speaker 4: That case was just an example of the overconfidence in
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Speaker 4: overreaching and what it could do to different individuals. The
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Speaker 4: idea that not only could they be wrong about linking
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Speaker 4: a hair to a person, which they can because you
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Speaker 4: can't do that at all, but that they can't even
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Speaker 4: identify what is human here and what isn't. Not only
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Speaker 4: did it occur in that case, but it continued to
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Speaker 4: occur unchecked. That was just outrageous, all right.
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Speaker 2: So joining us today is Vanessa Antone and Vanessa is
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Speaker 2: a member of the National Association.
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Speaker 3: Of Criminal Defense Lawyers.
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Speaker 2: I think will refer to them as the NACDL, And
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Speaker 2: this is just a wonderful, wonderful group. I'm a member
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Speaker 2: of the NACDL, and it is a policy and advocacy
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Speaker 2: organization that really is on the ground working for reforms
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Speaker 2: and improvements in the criminal justice system. You're going to
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Speaker 2: learn about a really remarkable project that they have been
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Speaker 2: involved in with the FBI, and Vanessa is a key
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Speaker 2: member of this project. And what they are doing is
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Speaker 2: reading hundreds of transcripts from old cases and cases where
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Speaker 2: defendants and the accused were convicted and in many cases
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Speaker 2: wrongfully convicted based on hair comparison analysis. So to start, Vanessa,
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Speaker 2: hair comparison analysis is also called hair microscopy, and we'll
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Speaker 2: use these terms interchangeably, but tell us a little bit
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Speaker 2: about what hair microscopy or hair comparison analysis is exactly.
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Speaker 4: It's looking at hair under a microscope, as you would
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Speaker 4: think from the title. But what a well trained hair
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Speaker 4: examiner was supposed to be able to do is look
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Speaker 4: at different characteristics and hair and try to make an
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Speaker 4: association from those characteristics. They look at characteristics like the
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Speaker 4: color and the thickness, whether it looks wavy, if it
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Speaker 4: has what they call scales on the cuticle, whether it's
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Speaker 4: smooth or ragged. They also look at the part of
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Speaker 4: the hair that's the medula, which is the middle of
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Speaker 4: the hair, and they look at the shape of that,
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Speaker 4: the thickness, the color. They also look at the cortex,
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Speaker 4: which is the main part of the hair, and that
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Speaker 4: gives the hair characteristics like the pigment. And when they
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Speaker 4: do the examination, they make note of all these characteristics
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Speaker 4: in like a known sample of hair, and then they
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Speaker 4: seek to compare that to the evidentiary hair.
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Speaker 2: So it sounds scientific, I guess in a way. The
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Speaker 2: examiner takes some hair from the suspect's head, and they
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Speaker 2: know where that's coming from because it's the person that's
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Speaker 2: accused of the crime, right in front of them, sitting
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Speaker 2: in a jail cell. So they take that hair and
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Speaker 2: put it in a little bag and label it, and
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Speaker 2: they take that hair sample and compare it to what
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Speaker 2: you refer to as the evidentiary hair or the unknown
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Speaker 2: sample that was found at the scene of a crime.
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Speaker 2: And so they're looking at characteristics of the hair found
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Speaker 2: at the crime scene and and seeing if the person
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Speaker 2: that they claim committed this crime has hair that matches
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Speaker 2: these characteristics. But the problem seems to be that there
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Speaker 2: are so many different characteristics and variables and hair that
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Speaker 2: matching one hair to another, and you know, doing that
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Speaker 2: to try to find out whether it came from the
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Speaker 2: same person isn't as easy as.
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Speaker 3: Some might think.
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Speaker 4: In reading all of these transcripts from hair examiners, you know,
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Speaker 4: throughout decades until two thousand, they would tell you that
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Speaker 4: there's a range even in a person's own head of hair.
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Speaker 4: They don't all look identical.
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Speaker 2: So where does hair microscop be really run into trouble?
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Speaker 2: Why isn't it reliable?
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Speaker 4: Microscopic hair comparison doesn't rely on a chemical analysis or
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Speaker 4: a set of concrete standards to associate or to make
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Speaker 4: a comparison. It's what is known as a pattern and
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Speaker 4: matching discipline. So it's basically eyeballing it. It's a subjective
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Speaker 4: forensic discipline. In fact, in the words of one of
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Speaker 4: the FBI hair examiners, it's the most subjective of the
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Speaker 4: forensic disciplines. As another microscopic hair examiner said, you just
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Speaker 4: you know, sometimes you get a feeling about a hair
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Speaker 4: and you know, it just bowls you over and you
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Speaker 4: just look at it. And so that's why there won't
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Speaker 4: be a database. You can't make a database of that
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Speaker 4: type of subjective feeling about hair.
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Speaker 2: Yeah, I get it. I mean, you could make a
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Speaker 2: database of people's subjective feelings about hair, but it's not
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Speaker 2: going to tell you very much. But it really begs
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Speaker 2: the question why were prosecutors using this to try to
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Speaker 2: get convictions. If it's so subjective and so speculative, why
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Speaker 2: were they using it at all.
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Speaker 4: Generally they would start out operating on the you know,
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Speaker 4: the trans for principle that if your hair falls out
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Speaker 4: and you are in a location or you're near someone,
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Speaker 4: hair can transfer to another person or to the place
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Speaker 4: that you're in close proximity to. So it could give
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Speaker 4: evidence of someone's presence in a certain location or with
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Speaker 4: a certain person. When that is one of the few
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Speaker 4: pieces of evidence you have, obviously you want to pursue that.
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Speaker 4: And a lot of these cases, not all, but a
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Speaker 4: lot of them were in pre DNA times, so this
17:34
Speaker 4: would be very powerful evidence when you can't just DNA
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Speaker 4: test something. So what you had is the hair.
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Speaker 2: But DNA testing had come out in the nineties, so
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Speaker 2: why wasn't it being used on hair evidence? Why were
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Speaker 2: prosecutors still an FBI examiners for that matter, still using
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Speaker 2: this hair comparison analysis.
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Speaker 4: When we think of DNA testing, that's nuclear DNA testing.
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Speaker 4: And the problem with hair and why this happened was
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Speaker 4: because unless there was tissue at the root of the hair,
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Speaker 4: like if you yank your hair out and it may
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Speaker 4: or may not have some tissue at the root. Unless
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Speaker 4: there was tissue there that could be tested with nuclear DNA,
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Speaker 4: you couldn't do a DNA test on hair. All you
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Speaker 4: could do is eyeball it under a microscope. Until mitochondrial DNA,
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Speaker 4: you know, a different type of DNA testing allowed testing
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Speaker 4: of the hair shaft to give a result. So in
18:33
Speaker 4: all those decades that was not there, that technology wasn't
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Speaker 4: being used, and it wasn't until around two thousand that
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Speaker 4: even you know, the FBI lab started using that in
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Speaker 4: all the cases, and that is when they could actually
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Speaker 4: look at the hair and say conclusively, no, it wasn't
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Speaker 4: from this individual.
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Speaker 3: I want to talk.
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Speaker 2: About three cases that all occurred around the Washington, DC area.
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Speaker 2: One was Sante Tribble, who we mentioned earlier, where a
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Speaker 2: dog hare was mistaken for a human air. Now another
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Speaker 2: case was the case of Donald Eugene Gates, and Donald
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Speaker 2: Gates was accused of raping and.
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Speaker 3: Killing a girl in a park.
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Speaker 2: Now, during his trial, an FBI special agent testified that
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Speaker 2: Donald's hair was quote microscopically indistinguishable end quote from hairs
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Speaker 2: found on the victim's body, and based on that that
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Speaker 2: the hair from the crime scene probably belonged to Donald Gates.
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Speaker 2: And so Donald was convicted and sentenced to twenty years
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Speaker 2: to life in prison. And then there's yet a third case,
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Speaker 2: and that is the case of an eighteen.
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Speaker 3: Year old named Kirk Odom.
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Speaker 2: Now this one was, you know, another sort of mind
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Speaker 2: bending example of this junk science being applied, because here
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Speaker 2: you have mister Odom just walking down the street one day.
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Speaker 2: He's on his way to go see his infant daughter
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Speaker 2: at his house, and a cop stops him on the
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Speaker 2: street and says, you know, you look like.
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Speaker 3: The guy in this picture. And the picture was.
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Speaker 2: A sketch that had been drawn based on a description
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Speaker 2: given by a woman that had been attacked blindfolded and
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Speaker 2: raped by a stranger with a gun, and the victim
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Speaker 2: only got a brief look at her attacker, but the
20:35
Speaker 2: officers drew the sketch based on what she described, which
20:39
Speaker 2: was basically a young black man. Based on that, the
20:43
Speaker 2: officer arrests Kirk Odem. And you have another example of
20:48
Speaker 2: an FBI agent testifying at a trial. And here the
20:52
Speaker 2: agent gets on the stand and says kirk Odom's hair
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Speaker 2: matches essentially hair found on the victor's nightgown. And they
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Speaker 2: used the same sort of language that is indistinguishable from
21:04
Speaker 2: Kirk's hair. Kirk spent over twenty two years in prison.
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Speaker 2: So what happens next is mitochondrial DNA testing finally becomes available, right,
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Speaker 2: that's the DNA testing of hair. And all three of
21:19
Speaker 2: these men's hair was tested, and what do you know,
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Speaker 2: none of their DNA matched any of the hairs that
21:27
Speaker 2: were found at the scenes of these crimes. And at
21:30
Speaker 2: this point, the FBI couldn't hide behind this anymore. So
21:33
Speaker 2: tell us, Vanessa, what happens next.
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Speaker 4: Well, I was lucky enough to be working with an ACDL.
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Speaker 4: When NACDL joined in work in a partnership with the FBI,
21:47
Speaker 4: the Department of Justice and the Innocence Project to conduct
21:51
Speaker 4: a review of the FBI hair examiner's cases from you know,
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Speaker 4: whenever they started, when the earliest we could find up
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Speaker 4: to about two thousand, and that came about for a
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Speaker 4: couple reasons, one of which was the National Academy of
22:06
Speaker 4: Sciences Report on Strengthening Forensic Science, which looked at patterned
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Speaker 4: and matching disciplines, including specifically hair comparison, and said, you know,
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Speaker 4: it just doesn't have a sufficient foundation to be used
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Speaker 4: for identifying people.
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Speaker 2: So the NACDL is working with the FBI and you
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Speaker 2: start going through all of these old cases. You're reading
22:28
Speaker 2: the transcripts, and these are trials where hair evidence was
22:32
Speaker 2: used to get a conviction.
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Speaker 3: So what did you find.
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Speaker 4: Part of the frustration that the lawyers had and that
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Speaker 4: we all had reading these transcripts back to back was
22:44
Speaker 4: the continued nature of the same statements that were unscientific,
22:49
Speaker 4: and so we called them error type one, two and three.
22:53
Speaker 4: And in Layman's terms, air type one is basically where
22:58
Speaker 4: they're making a one to one association between a person
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Speaker 4: and a hair, which can never be done with microscopic
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Speaker 4: hare comparison. So that's when an examiner either states or
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Speaker 4: implies that the evidentiary hair can be associated to a
23:15
Speaker 4: specific individual to the exclusion of all others, and that
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Speaker 4: would include statements indicating that hair is unique. Sometimes an
23:24
Speaker 4: analogy of a fingerprint was used in testimony. Well, it's
23:27
Speaker 4: not exactly like a fingerprint, but it kind of is,
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Speaker 4: and that's why we can say that this hair came
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Speaker 4: from this person. So that's that one to one association,
23:37
Speaker 4: and that is absolutely incorrect. You can't say hair is
23:41
Speaker 4: unique and use it to associate people. You know, you
23:44
Speaker 4: shouldn't have to say it's like this or it's like that.
23:47
Speaker 4: You should just say what it is. And if what
23:49
Speaker 4: it is isn't enough, then it shouldn't be used to
23:53
Speaker 4: connect the hair to a person. That wasn't really the
23:57
Speaker 4: most common type of error or scientifically invalid statement we saw.
24:04
Speaker 4: It was usually what we call air two and what
24:08
Speaker 4: I'm talking about. There are statements like, well, it would
24:12
Speaker 4: be rare if two hairs that looked this similar came
24:16
Speaker 4: from two different individuals, And those were the things we
24:20
Speaker 4: were looking for in the review, and unfortunately found that
24:25
Speaker 4: in the majority, the vast majority, over ninety percent of
24:28
Speaker 4: cases where FBI examiners gave testimony, the conclusions were exaggerated,
24:35
Speaker 4: and there were scientifically unsupported statements in the testimony.
24:39
Speaker 2: Look, I always knew this was bad, but ninety percent
24:43
Speaker 2: of the cases, I mean, that's just an insane statistic.
24:46
Speaker 2: And you know, our listeners really need to remember that
24:49
Speaker 2: these weren't just any experts coming in to give testimony.
24:53
Speaker 3: This is the FBI.
24:55
Speaker 2: This is, you know, an organization that has a reputation
24:58
Speaker 2: for having a attained higher knowledge, you know, knowing more
25:02
Speaker 2: than just everyday people.
25:05
Speaker 4: When an FBI examiner comes in, especially in a state case,
25:11
Speaker 4: great weight is given to what they say. It is
25:15
Speaker 4: very impressive to have the FBI show up and explain
25:19
Speaker 4: a discipline and tell you what something means in their experience.
25:24
Speaker 4: And that's what happened. In some cases, an FBI was
25:29
Speaker 4: asked to do hair examination when the local examiners couldn't
25:32
Speaker 4: make an association, which makes the whole thing even more
25:36
Speaker 4: questionable because the inquiry should end there. You shouldn't be
25:39
Speaker 4: able to try to find someone else who will give
25:42
Speaker 4: you the answer that you want. Also, they found that
25:47
Speaker 4: the FBI hair examiners kept their identity as law enforcement
25:51
Speaker 4: agents first and foremost, and they found that instead of
25:55
Speaker 4: acting like impartial scientists, the FBI lab culture at the
26:00
Speaker 4: time embraced the agent examiners acting like more like detectives,
26:06
Speaker 4: and that that approach should have been pulled back. And remember, no,
26:10
Speaker 4: you're independent. This is scientific. You're not part of the
26:14
Speaker 4: law enforcement investigative team. You're a scientist.
26:18
Speaker 2: So, Vanessa, you read transcripts from a ton of cases,
26:21
Speaker 2: a lot of testimony. Were there any that really stood
26:25
Speaker 2: out to you where you sat back and said, Wow,
26:27
Speaker 2: this is really bad.
26:29
Speaker 4: A couple of things where I thought I could not believe.
26:31
Speaker 4: This was the case where the examiner said that he
26:35
Speaker 4: had significant experience, you know, examining pubic cares from people
26:41
Speaker 4: from Mexico, and therefore he could exclude people from Mexico
26:46
Speaker 4: from having contributed the pubic care in the case at hand.
26:50
Speaker 4: Obviously that was because the alternate suspects other than the
26:55
Speaker 4: defendant were from Mexico. So that was entirely made up.
26:58
Speaker 4: I mean, I can't even there's no point trying to
27:02
Speaker 4: be nice about it. That's not a thing anybody can
27:05
Speaker 4: ever say, and it was just made up. You can't
27:09
Speaker 4: say that a hair came from an individual of a
27:12
Speaker 4: particular racial group. They can look at the hair and
27:15
Speaker 4: talk about some of the ancestral origins and some of
27:18
Speaker 4: the classifications into groups at a huge broad level, which
27:23
Speaker 4: really wouldn't have value and you know, crime investigation. But
27:27
Speaker 4: they absolutely can't say that it did or did not
27:31
Speaker 4: come from a person from a certain country. So that's
27:36
Speaker 4: you know, that's pretty ridiculous.
27:48
Speaker 2: So after you review the transcripts from a case, and
27:52
Speaker 2: let's say you determine that you know, an expert or
27:56
Speaker 2: a so called expert came in and gave testimony and
27:59
Speaker 2: said that were just outside the bounds of science, and
28:03
Speaker 2: there was a conviction. What happened next? What were the
28:07
Speaker 2: next steps.
28:07
Speaker 3: Of the review?
28:09
Speaker 4: I seek to assist folks in finding counsel and hooking
28:15
Speaker 4: them up with lawyers who could assist them to pursue
28:18
Speaker 4: any claims they might have. If that type of evidence
28:21
Speaker 4: was used in their case, they would do the DNA
28:24
Speaker 4: testing on the hair, or if no hair could be
28:27
Speaker 4: found after all these years, because these are old cases,
28:31
Speaker 4: they would do testing on other biological evidence as long
28:34
Speaker 4: as a chain of custody could be established.
28:38
Speaker 2: So look, I just have to say, and if this
28:41
Speaker 2: is a shameless plug so be it. The NACDL is
28:44
Speaker 2: just it's a remarkable organization because you're not only exposing problems,
28:49
Speaker 2: which you certainly did here, but it goes that extra
28:53
Speaker 2: step to helping people that you know, have been the
28:56
Speaker 2: victim of a wrongful conviction or the victim of of
29:00
Speaker 2: you know, testimony that goes outside the bounds of science,
29:04
Speaker 2: and getting them help and hooking them.
29:06
Speaker 3: Up with lawyers.
29:07
Speaker 2: So you must, Vanessa, have had an interesting experience from
29:12
Speaker 2: all these cases. What is your biggest takeaway from this work?
29:16
Speaker 4: No matter how much you want a conviction or how
29:19
Speaker 4: much other evidence you think you have of guilt, it's
29:23
Speaker 4: never appropriate to admit unsupported science and the idea that
29:29
Speaker 4: using certain techniques are needed as tools to quote unquote
29:35
Speaker 4: catch the bad guys, which is still a conversation that's
29:39
Speaker 4: going on with forensic science today. That's the fear that
29:44
Speaker 4: law enforcement won't have the tools they need to catch
29:49
Speaker 4: people or to convict people. And the appropriate response should be, well,
29:54
Speaker 4: those tools have to be scientifically valid and they have
29:59
Speaker 4: to be science typically sound.
30:01
Speaker 2: So can't this model that the NACDL and the FBI
30:05
Speaker 2: employed here, which is re reviewing cases and exposing problems
30:10
Speaker 2: and helping right these wrongs. Can't this model be applied
30:14
Speaker 2: to other disciplines of junk science? It just seems so effective.
30:18
Speaker 2: Then you're able to help so many people.
30:21
Speaker 4: As a result of the FBI hair Review and other
30:26
Speaker 4: movements to make sure forensic science was more reliable for
30:31
Speaker 4: the courtroom, there were plans in the Department of Justice
30:34
Speaker 4: in the last administration to do similar reviews of other
30:40
Speaker 4: pattern and matching disciplines, to take a historical look back
30:44
Speaker 4: and see if in some other disciplines in the FBI
30:47
Speaker 4: lab that were susceptible to similar errors, if similar errors
30:52
Speaker 4: had occurred, and like the hair review, to find those
30:55
Speaker 4: and identify them and provide notification and give a means
31:01
Speaker 4: for folks to address those potential scientific overstatements.
31:06
Speaker 2: All right, So the way you say that evans when
31:09
Speaker 2: you say there are were plans in the Department of
31:12
Speaker 2: Justice to do this historical look back, makes me have
31:17
Speaker 2: the sinking suspicion that maybe it didn't pan out.
31:20
Speaker 4: What happened that, along with several other plans, was rolled
31:25
Speaker 4: back by then Attorney General Sessions. Under the new administration,
31:31
Speaker 4: it has become a little harder. We have to be
31:34
Speaker 4: extra vigilant when you're dealing with the situation where plans
31:39
Speaker 4: for progress were abandoned. So while a lot of progress
31:46
Speaker 4: has been made, there's a lot to be done. You know,
31:48
Speaker 4: cases are still litigation. Cases still need to be litigated.
31:53
Speaker 4: So yeah, the struggle continues.
32:01
Speaker 3: You might be.
32:02
Speaker 2: Listening to this wondering what you can do to help.
32:05
Speaker 2: Thanks to the work that Vanessa is doing with the NACDL,
32:09
Speaker 2: many individuals have been exonerated. But being exonerated means moving
32:14
Speaker 2: from a life of injustice and hardship in prison to
32:17
Speaker 2: another kind of very difficult life outside of prison. Take
32:22
Speaker 2: for example, Drew Whitley. In nineteen eighty nine, the manager
32:25
Speaker 2: of McDonald's was murdered in Pennsylvania. Another McDonald's employee was
32:30
Speaker 2: there when the crime occurred. The witness could not see
32:33
Speaker 2: the face of the perpetrator because he was wearing a
32:36
Speaker 2: ski mask, but he claimed nonetheless that the person that
32:39
Speaker 2: committed the crime had been Drew Whitley, his neighbor. Investigators
32:44
Speaker 2: found a hair on a ski mask which was found
32:46
Speaker 2: near the crime scene. They compared it to Drew's hair
32:50
Speaker 2: and claimed that it matched Drew. Whitley was convicted and
32:53
Speaker 2: sentenced to life in prison. After fighting for years, Drew
32:58
Speaker 2: was finally able to get the hairs from the crime
33:00
Speaker 2: I'm seeing tested for mitochondrial DNA. The hairs did not
33:04
Speaker 2: belong to him, and he was exonerated in two thousand
33:07
Speaker 2: and six. The trauma from his wrongful conviction remains. He's
33:12
Speaker 2: always looking over his shoulder with the constant and perhaps
33:16
Speaker 2: justified worry that a police officer will bring him back
33:19
Speaker 2: to prison for no good reason at all. Something that
33:23
Speaker 2: strikes me about a lot of these men who have
33:25
Speaker 2: been convicted based on hair comparison evidence, like Drew, Whitley,
33:29
Speaker 2: and Kirk Odom, is that many of them have shaved
33:33
Speaker 2: their heads after their release. I can't help but to
33:36
Speaker 2: wonder if it's because of this fear that someone will
33:39
Speaker 2: find their hair where it shouldn't be and the nightmare
33:42
Speaker 2: will begin all over again. After serving seventeen years for
33:47
Speaker 2: a crime he didn't commit, dru was finally released, but
33:51
Speaker 2: he didn't receive any compensation from the state. So here's
33:55
Speaker 2: someone that lives a literal nightmare, struggling behind bars to
33:59
Speaker 2: prove his innocence, and now he has to struggle to
34:02
Speaker 2: survive on the outside. Right now, fifteen states in this
34:07
Speaker 2: country don't offer any compensation to exonerreies. The thirty five
34:12
Speaker 2: states that do differ widely in the amounts that they offer,
34:15
Speaker 2: and it's often difficult to satisfy all of the procedural
34:18
Speaker 2: requirements to qualify for the money. As you can imagine,
34:22
Speaker 2: there are always loopholes, and the states often exploit them.
34:27
Speaker 2: Money can't give back the years of someone's life that
34:29
Speaker 2: they were robbed of, but compensation does help. It eases
34:34
Speaker 2: an exneries path forward and healing and living a more
34:37
Speaker 2: comfortable life. The Innocence Project is fighting to hold states
34:41
Speaker 2: accountable for compensating wrongfully convicted individuals. Until all states enact
34:47
Speaker 2: legislation to compensate the wrongly convicted, that fight will continue.
34:52
Speaker 2: The Innocence Project has set up a fund to support exonreies.
34:56
Speaker 2: The fund is currently expanding to cover those exoneries who
35:00
Speaker 2: are facing job loss or economic hardships due to COVID nineteen.
35:04
Speaker 2: You can donate to this fund by going to Innocenceproject
35:07
Speaker 2: dot org slash Exonery dash Fund DASH twenty twenty. You
35:14
Speaker 2: can also support the amazing work that the NACDL is
35:18
Speaker 2: doing by donating to the NACDL Foundation for Criminal Justice.
35:22
Speaker 2: You could find out more about that at NACDL dot org.
35:36
Speaker 2: Next week, we'll explore the junk science of shoe print
35:39
Speaker 2: and tire track evidence. Wrongful Conviction Junk Science is a
35:44
Speaker 2: production of Lava for Good Podcasts in association with Signal
35:48
Speaker 2: Company Number One. Thanks to our executive producer Jason Flahm
35:52
Speaker 2: and the team at Signal Company Number One executive producer
35:55
Speaker 2: Kevin Wartis and senior producers Karen Kornhaber and Britz Spangler.
36:00
Speaker 3: Our music was composed by Jay Ralph.
36:02
Speaker 2: You can follow me on Instagram at dubin Josh. Follow
36:06
Speaker 2: the Wrongful Conviction podcast on Facebook and on Instagram at
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Speaker 2: wrongful Conviction and on Twitter at wrong Conviction