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Forensics on the Hill: Part I

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Two stray hairs sealed Donald Eugene Gates' fate. He was a suspect in the rape and murder of a college student in Rock Creek Park, in Washington D.C. There were no eyewitnesses. The revolver used to shoot the victim was never found. At his trial in 1982, an FBI analyst testified -- an "eight year veteran" who said he had conducted over 10,000 examinations of crime scene hairs. He said that only twice in his career had he ever been unable to distinguish different people's hair. And he said he compared Gates' hairs to two hairs found on the victim. He found the hairs "microscopically indistinguishable." It was "highly unlikely" that those hairs could have come from anyone else. On the strength of that finding, Gates was arrested. At his trial, the analyst gave the powerful forensic testimony about the hairs, a paid informant claimed Gates had confessed to him, and Gates was convicted.

This seemingly airtight murder conviction would unravel decades later to uncover a national scandal. The forensics in his case were deeply flawed, and this past year they led lawyers and journalists to help to uncover additional wrongful convictions and still more possible errors in thousands of old FBI cases spread across the country.

Gates' exoneration was a long time coming. He had maintained his innocence for years. He sought DNA testing in 1988 -- but DNA technology was new and the results were inconclusive. Meanwhile, the FBI analyst who had testified with such confidence at Gates' trial himself came under investigation in the late 1990s, after a whistle-blower repeatedly spoke out about shoddy work at the FBI lab. A 1997 review by the Department of Justice found that the analyst in Gates' case and 13 other FBI analysts reached false results and used inaccurate methods in a host of cases. The report found that the FBI analyst in Gates' case had "resorted to fabrication rather than admitting he did not know the answer." Having found his work in Gates' case unsupported, prosecutors were told to reinvestigate the case. However, nothing happened and Gates' lawyers were never told of any of this. The report on the FBI lab was kept secret. Gates' lawyers were never told that the FBI analyst had also been found to have testified falsely in many other cases, including death penalty cases.

The lid did not begin to come off the scandal until a decade later, in 2007, when Gates sought DNA testing again. This time he got DNA results that cleared him and matched another man. He was exonerated in 2009, after spending 28 years in prison. The judge called it "outrageous" that the report of botched FBI cases had been kept a secret and ordered an investigation into all FBI hair cases in Washington D.C.

Why didn't anyone tell Gates over a decade before that the hair analysis in his case was all wrong? In fact, the hair testimony was scientifically unsound. There is no research on how common microscopic hair characteristics are. Hair is not like DNA or even a fingerprint. Hairs vary quite a bit on the same person's body, which is why analysts would try to compare large sets of hair under a microscope. The FBI knew this well, having convened an entire symposium on the subject in the 1980s, to make clear that conclusions about hair comparisons must be extremely cautious. Yet analysts still crossed the line, and judges still let analysts offer exaggerated and scientific-sounding conclusions to the jury.

I saw countless examples of cases just like Gates', when I researched the cases of the first 250 people exonerated by DNA tests for a book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong. I found that similarly overstated, unreliable, and invalid forensics were present in a majority of those criminal trials of the innocent. There were dozens more cases like Gates' involving botched hair comparisons.

One of the best known of those cases is that of Ron Williamson, who was sent to death row in Oklahoma. John Grisham wrote a non-fiction book about the case. In 1995, not knowing Williamson was innocent, a federal judge threw out his conviction, ruling that microscopic hair analysis should not even be allowed in court, finding it too susceptible to error, subjective and "scientifically unreliable."

When I looked at the criminal trials of DNA exonerees, I found similar problems with serology analysis, bite mark analysis, fiber comparisons, and other traditional forensics. I even saw several more recent cases where analysts botched DNA tests. Analysts even concealed evidence of defendant's innocence. Had DNA tests not been done years later, these people might have spent the rest of their lives in prison. Still worse, some forensic analysts mistakenly ruled out people who were later shown by DNA to have been the actual culprits.

Time will tell whether a national solution comes out of Washington, with important federal forensics reform legislation pending when lawmakers return this month. In the two pieces to follow I will talk about more fall-out from Donald Gates' case, forensics scandals across the country at other crime labs -- and why this federal legislation to improve forensics is so urgently needed.