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DNA Forensic Error and the Execution of Innocents

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Willie Jerome Manning, a 44-year-old black man, is scheduled to die by lethal injection on Tuesday for the 1992 kidnapping and murder of white college students Jon Steckler and Tiffany Miller in Mississippi. No physical evidence has ever linked Manning to the crime. And the Justice Department has just come clean that the FBI's forensic science used to prosecute
Manning was fundamentally flawed.

A jury convicted Manning almost 20 years ago based on three kinds of circumstantial evidence. First was the testimony of his cousin and a jailhouse informant who claimed that he confessed the crime to them. The cousin had accused two other men before Manning, however, and the informant has since recanted altogether. Second were Steckler's jacket, ring, and CD player from his car that Manning was arrested for trying to sell. Manning told police from the beginning that he had acquired the stolen property from someone he didn't know.

Critical to the prosecution's case was the last piece of evidence against Manning: expert testimony by an FBI agent that African American hair fragments were found in Miller's car. Not only did DNA and fingerprints found at the crime scene never incriminate Manning himself, however. Two days ago, the Justice Department notified Manning's lawyer and the County District Attorney that "testimony containing erroneous statements regarding microscopic hair comparison analysis was used in this case." Federal officials have yet to detail the precise errors involved, but made clear in their letter that the FBI's forensic evidence was unsound not least because it "exceeded the limits of science" at the time.

The Washington Post reported yesterday that the Justice Department discovered the errors "as part of a broad review of the FBI's handling of . . . forensic hair examinations before 2000 -- at least 21,000 cases -- to determine whether agents exaggerated the significance of purported hair 'matches' in lab reports or trial testimony." This admission comes days after a 5-4 majority of the Mississippi Supreme Court denied a request by Manning's lawyers to reexamine the forensic evidence in his case on the ground that "conclusive, overwhelming evidence of guilt was presented to the jury."

Justice Kagan warned in last year's Supreme Court case of Williams v. Illinois that the current state of DNA forensics poses a wide range of serious risks of error. These include, as I have explained elsewhere, "contamination of genetic samples during collection, handling, or testing; clerical mistakes during computer data entry; and misinterpretation by laboratory personnel." Justice Kagan admonished that by denying Sandy Williams the right to confront the analyst who performed the incriminating DNA test, the state court and four-Justice plurality that affirmed its judgment made it so that his "attorney could not ask about that analyst's proficiency, the care he took in performing his work, and his veracity. He could not probe whether the analyst had tested the wrong vial, inverted the labels on the samples, committed some more technical error, or simply made up the results."

Now federal officials have for the first time in history acknowledged that these very kinds of errors marred the forensic analysis at the heart of the capital conviction for which Willie Jerome Manning is sentenced to die on Tuesday. With the Justice Department's unprecedented admission, the Mississippi governor must stay Manning's pending execution and the state courts must forbid law enforcement from destroying DNA evidence whose resting could exonerate him. The stakes are high and urgent. Failure to act in time could result in the execution of an innocent man and would strike a grave blow to our criminal justice system.

Please consider adding your voice to the thousands of others asking Governor Bryant to stay the execution of Willie Manning and order DNA testing of the evidence in his case: Innocence Project.

Dov Fox will join the University of San Diego as an Assistant Professor of Law in August 2013. Among his publications on topics in criminal law and forensic science is The Second Generation of Racial Profiling.