WEBVTT - #394 Wrongful Conviction: Junk Science - Hair Microscopy Evidence 0:00:01.639 --> 0:00:04.360 Hey folks, Kate Judson here, I'm a lawyer and the 0:00:04.400 --> 0:00:07.960 executive director of the Center for Integrity and Forensic Sciences. 0:00:10.039 --> 0:00:13.200 We're back with another episode of Junk Science, a series 0:00:13.240 --> 0:00:16.640 we first released in twenty twenty, but these stories are 0:00:16.800 --> 0:00:21.320 just as relevant as ever. This week's episode focuses on 0:00:21.560 --> 0:00:25.439 hair microscopy, a forensic discipline that compares hair found on 0:00:25.480 --> 0:00:28.120 a victim or at a crime scene to the hair 0:00:28.120 --> 0:00:32.239 of a suspect. The problem, and from the title of 0:00:32.280 --> 0:00:34.760 the show, you know what I'm going to say, The 0:00:34.880 --> 0:00:38.839 problem is that hair microscopy is junk science. Even with 0:00:38.920 --> 0:00:43.240 a microscope, it is next to impossible to accurately prove 0:00:43.320 --> 0:00:48.080 that two hairs came from the same person without DNA testing. 0:00:49.560 --> 0:00:52.680 Since this episode aired in twenty twenty, there was another 0:00:52.760 --> 0:00:56.480 exoneration on a hair microscopy case that made big headlines. 0:00:59.240 --> 0:01:03.120 In twenty one one, Anthony Broadwater was exonerated of the 0:01:03.200 --> 0:01:07.640 crime of raping author Alice Sebold, who's best known for 0:01:07.800 --> 0:01:12.600 the novel The Lovely Bones. Anthony Broadwater was convicted of 0:01:12.640 --> 0:01:16.280 the rape in nineteen eighty two with eyewitness testimony and 0:01:16.360 --> 0:01:20.360 hair microscopy, two methods we now know are flawed. At 0:01:20.360 --> 0:01:23.840 his exoneration hearing, the judge said that he was deeply 0:01:23.959 --> 0:01:27.840 sorry that this never should have happened. Anthony Broadwater broke 0:01:27.920 --> 0:01:31.520 down in tears. The wrongful conviction that had ruined his 0:01:31.680 --> 0:01:38.440 life was overturned, and his innocence finally validated. Unfortunately, we 0:01:38.560 --> 0:01:41.759 don't know how many other Anthony Broadwaters are out there. 0:01:48.240 --> 0:01:52.400 Washington, DC, A muggy summer day finally starts to cool 0:01:52.440 --> 0:01:58.040 as night falls. Street lights turn on, Crickets chirp, there's 0:01:58.080 --> 0:02:00.400 the soft jingle of the tags on a dog caller. 0:02:01.360 --> 0:02:05.040 A black poodle walks up someone's porch steps, sniffs around. 0:02:05.760 --> 0:02:08.120 The dog leaps back down the stairs when its owner 0:02:08.160 --> 0:02:11.920 calls its name. A few hours later, on those same 0:02:11.960 --> 0:02:15.240 porch steps, the man who lives there slowly walks up, 0:02:15.639 --> 0:02:20.359 and a masked figure walks up behind him. There's a gunshot. 0:02:20.800 --> 0:02:24.639 Someone screams. The shooter makes a run for it, ripping 0:02:24.639 --> 0:02:27.680 a stocking mask from his face. It lands on a 0:02:27.720 --> 0:02:31.040 porch step as he disappears down the street into the night. 0:02:34.400 --> 0:02:36.840 You live down the street from where the gunshot went off. 0:02:37.840 --> 0:02:40.560 Three days later, you're hanging out with your girlfriend and 0:02:40.600 --> 0:02:45.200 your mom's basement sitting on the couch watching TV. Your 0:02:45.200 --> 0:02:49.600 mom is upstairs cleaning up after dinner, and then there's 0:02:49.600 --> 0:02:53.840 a knock at the door. You hear someone introduce themselves 0:02:53.880 --> 0:02:58.000 as an officer, officers something or other, and damn it, 0:02:58.080 --> 0:03:01.480 you think, and your teenage mind you figure he must 0:03:01.520 --> 0:03:03.400 be there about the parking ticket you got a few 0:03:03.440 --> 0:03:05.160 weeks ago and didn't pay yet. 0:03:05.840 --> 0:03:07.160 Your mom's gonna be pissed. 0:03:08.440 --> 0:03:14.040 You head upstairs, but they cuff you and take you away. 0:03:14.160 --> 0:03:16.880 You're brought down to the station and put in a cell, 0:03:17.360 --> 0:03:19.359 and they tell you that you'll be tried for the 0:03:19.480 --> 0:03:23.840 murder of your neighbor. The next day you're transferred to 0:03:23.880 --> 0:03:26.840 the county jail and you're beginning to absorb the shock 0:03:26.919 --> 0:03:29.760 of it all. The one thing that you can't get 0:03:29.800 --> 0:03:33.480 past is the filth. It's just terrible in there, everything 0:03:33.520 --> 0:03:36.600 from the bugs to the food, to the living conditions 0:03:37.520 --> 0:03:41.960 and the noise. The noise is unbearable. You can hardly sleep. 0:03:42.960 --> 0:03:45.960 You begin to miss out on things. Your family summer 0:03:46.040 --> 0:03:50.600 vacation comes and goes. Six months pass. You would have 0:03:50.600 --> 0:03:54.720 had your ged by now. A year slips by, and 0:03:54.760 --> 0:03:56.960 then a year turns into a year and a half. 0:03:57.840 --> 0:04:00.800 Your nieces and nephews, the ones the you helped raise 0:04:00.880 --> 0:04:04.000 or growing up. You've spoken to them a few times, 0:04:04.000 --> 0:04:06.840 but they haven't come to visit. Are they thinking that 0:04:06.880 --> 0:04:10.480 their uncle may have done this? You miss out on 0:04:10.520 --> 0:04:13.560 the final years of being a care free teen. It 0:04:13.600 --> 0:04:18.960 seems as though everything's moving on without you. Finally, after 0:04:19.040 --> 0:04:24.200 two agonizing years, your case goes to trial. You want 0:04:24.240 --> 0:04:28.000 to get your life back. You didn't kill anyone. You 0:04:28.080 --> 0:04:31.839 were in that same basement all night when someone else 0:04:31.880 --> 0:04:34.560 climbed your neighbors steps and ended his life with a 0:04:34.600 --> 0:04:40.839 single gunshot blast of the head. A few weeks ago, 0:04:40.880 --> 0:04:43.280 an officer came to your cell and cut some of 0:04:43.320 --> 0:04:46.280 your hair. Of course, you willingly let them take it 0:04:46.560 --> 0:04:49.160 because you were sure it would help prove your innocence. 0:04:50.600 --> 0:04:52.040 As you sit in the courtroom at. 0:04:51.960 --> 0:04:54.919 Your trial, the prosecutor says that there was a nylon 0:04:55.120 --> 0:04:58.200 stocking mass found at the scene of the crime. An 0:04:58.279 --> 0:05:01.680 FBI agent takes the stand for the prosecution and tells 0:05:01.720 --> 0:05:05.560 the jury, I compare the defendant's hair to the thirteen 0:05:05.640 --> 0:05:09.360 hairs found on the mask. This agent tells the jury 0:05:09.440 --> 0:05:12.960 that the defendant's hair is indistinguishable from one of those 0:05:13.000 --> 0:05:19.279 thirteen hairs. The prosecutor says, there's one chance, perhaps for 0:05:19.360 --> 0:05:22.640 all we know in ten million, that it could be 0:05:22.720 --> 0:05:27.880 someone else's hair. This single hair proves critical because it's 0:05:27.920 --> 0:05:33.560 the only physical evidence that ties you to the homicide. 0:05:33.600 --> 0:05:37.280 You're told the jury's reached a verdict. They shuffle back 0:05:37.320 --> 0:05:39.479 into the courtroom, and none of them will look at you. 0:05:41.080 --> 0:05:44.160 When you hear the word guilty, there's the sudden eruption 0:05:44.680 --> 0:05:49.359 of uncontrolled sobbing, like the turning on of a spigot. 0:05:49.960 --> 0:05:53.640 There's the unraveling of your mother in whales. Not my baby, 0:05:53.839 --> 0:05:57.560 My baby didn't do it. Your ants are crying, your 0:05:57.600 --> 0:06:00.680 relatives are trying to console each other. There's just a 0:06:00.760 --> 0:06:04.800 medley of weeping and misery. You feel like you're going 0:06:04.880 --> 0:06:07.320 to pass out. The room is sideways, and then it's 0:06:07.400 --> 0:06:11.920 upside down, and then you're all white. All you can hear, 0:06:12.320 --> 0:06:16.719 all you can see. Everything turns white, and you go numb. 0:06:18.640 --> 0:06:21.600 You're sentenced to twenty years to life and stay prison, 0:06:22.880 --> 0:06:31.000 and then there is nothing. Everything goes blank. You do 0:06:31.080 --> 0:06:34.760 everything you can to prove your innocence. You write letters, 0:06:35.120 --> 0:06:38.200 study the law, Your father comes to visit you. Just 0:06:38.240 --> 0:06:42.000 about every single Saturday. But he dies four years after 0:06:42.040 --> 0:06:45.640 your arrest. Your mom dies two years after that, and 0:06:45.920 --> 0:06:49.000 you can't go to either of their funerals. You can't 0:06:49.000 --> 0:06:53.360 help but to think, did this kill them? My wrongful conviction. 0:06:54.839 --> 0:06:58.160 You sit in your cell, numb most days, and you 0:06:58.240 --> 0:07:01.359 try to recall little things that will bring some comfort. 0:07:01.720 --> 0:07:06.440 To smell your mother's cooking, sitting around playing cards with 0:07:06.480 --> 0:07:10.600 your friends, holding hands with your girlfriend, and your mother's 0:07:10.640 --> 0:07:15.320 basement watching TV. You live a lifetime in that prison, 0:07:16.280 --> 0:07:20.800 thirty three long years. It takes all of that time 0:07:21.040 --> 0:07:24.200 for the district attorney to finally agree to test the 0:07:24.280 --> 0:07:27.640 DNA contained in the hair that was found on that 0:07:27.760 --> 0:07:30.640 stalking mask that dropped to the steps of that porch. 0:07:31.640 --> 0:07:34.520 It turns out the way you knew it would. Your 0:07:34.600 --> 0:07:38.800 DNA does not match any of those thirteen hairs. But 0:07:38.880 --> 0:07:41.680 they do figure out who one of the hairs belongs to, 0:07:42.080 --> 0:07:46.160 and it's not a person. Turns out that one of 0:07:46.160 --> 0:07:49.280 the hairs they found on that stalking mask, and argue 0:07:49.320 --> 0:07:52.640 to the jury was a human hair belong to that poodle. 0:07:54.040 --> 0:07:56.760 When you re enter the world, they say you're free, 0:07:57.000 --> 0:07:59.920 but are you really? You went in as an eighteen 0:08:00.120 --> 0:08:02.960 year old boy and came out a fifty one year 0:08:02.960 --> 0:08:07.520 old man, and you've aged beyond your years. Your fighting 0:08:07.520 --> 0:08:10.440 an illness caused by the burden of carrying around your 0:08:10.440 --> 0:08:14.760 innocence for your entire adult life. You die at the 0:08:14.760 --> 0:08:18.080 age of fifty nine, enjoying only eight free years with 0:08:18.160 --> 0:08:22.320 what's left of your family. But your death, your suffering 0:08:22.640 --> 0:08:27.080 is not in vain. After you were found to be innocent, 0:08:27.520 --> 0:08:31.640 the FBI starts to re examine over three thousand cases 0:08:31.680 --> 0:08:33.440 where similar evidence was used. 0:08:34.160 --> 0:08:35.319 They're looking for other. 0:08:35.200 --> 0:08:39.199 People who, like you, were wrongfully convicted of crimes they 0:08:39.240 --> 0:08:43.520 didn't commit, people whose lives were destroyed by the junk 0:08:43.640 --> 0:08:52.040 science of hair comparison analysis. The story you just heard 0:08:52.360 --> 0:08:56.400 is based on true events of Sante Treble's life. He 0:08:56.520 --> 0:09:00.400 was wrongfully convicted in nineteen seventy eight, an exonery in 0:09:00.400 --> 0:09:05.720 twenty twelve. He passed away in July of twenty twenty. 0:09:06.559 --> 0:09:15.360 This episode is dedicated to him. I'm Josh duban civil 0:09:15.440 --> 0:09:18.840 rights and criminal defense attorney and Innocent ambassador to the 0:09:18.840 --> 0:09:23.400 Innocence Project in New York. Even when examined under a microscope, 0:09:23.559 --> 0:09:27.000 the similarities that can be observed between two hairs are 0:09:27.040 --> 0:09:30.760 open to a wide interpretation. In other words, there are 0:09:30.760 --> 0:09:35.199 no definitive traits that can prove with any scientific certainty 0:09:35.679 --> 0:09:38.760 that a suspect's hair matches a hair found at a 0:09:38.800 --> 0:09:43.280 crime scene. Yet hair comparison analysis was still being used 0:09:43.280 --> 0:09:47.200 to falsely identify and convict innocent people up until the 0:09:47.280 --> 0:09:51.280 year two thousand and today there are still people who 0:09:51.320 --> 0:09:55.240 are incarcerated that were convicted based on this false evidence. 0:09:56.360 --> 0:09:59.200 So how did this evidence get admitted into courts in 0:09:59.240 --> 0:10:03.920 the first place. Turns out, hair my crosscubee was born 0:10:04.000 --> 0:10:07.239 in the eighteen hundreds, and the methods used to analyze 0:10:07.240 --> 0:10:20.120 and compare human hairs haven't changed much since. In eighteen 0:10:20.200 --> 0:10:23.600 sixty nine, a man named John Dorsey was accused of 0:10:23.679 --> 0:10:25.840 killing his wife by beating her over the head with 0:10:25.840 --> 0:10:30.400 a club in his own yard in Massachusetts. During the trial, 0:10:30.880 --> 0:10:33.480 two men claimed that they had seen hairs attached to 0:10:33.520 --> 0:10:36.880 the alleged murder weapon, and that the hair appeared to 0:10:36.920 --> 0:10:40.560 be brunette human hair that was the color of mister 0:10:40.640 --> 0:10:46.319 Dorsey's wife's hair. Mister Dorsey was shocked his wife was brunette, 0:10:46.320 --> 0:10:50.200 but so were as horses. According to mister Dorsey, the 0:10:50.240 --> 0:10:52.840 club wasn't a murder weapon. It was just one of 0:10:52.920 --> 0:10:55.280 many pieces of wood that was set out by the 0:10:55.320 --> 0:10:58.840 horse stables. The hair and the clubs didn't belong to 0:10:58.880 --> 0:11:01.959 his wife, but was a hair that had fallen from. 0:11:01.760 --> 0:11:02.720 His horse's tail. 0:11:03.920 --> 0:11:06.600 But the court ruled that mister Dorsey couldn't present this 0:11:06.679 --> 0:11:11.200 account about the horse hair. Meanwhile, the testimony from the 0:11:11.240 --> 0:11:15.360 men claiming that the hair was mister Dorsey's wife's was permitted. 0:11:16.679 --> 0:11:21.040 Mister Dorsey was eventually convicted of killing his wife. This 0:11:21.200 --> 0:11:24.480 was the first time a courd admitted hair comparison analysis 0:11:24.480 --> 0:11:28.120 as evidence in our legal system, and it definitely wouldn't 0:11:28.160 --> 0:11:32.200 be the last. Over a century later, animal hair and 0:11:32.280 --> 0:11:35.520 human hair would again be an issue in the Sante 0:11:35.600 --> 0:11:36.280 Triple case. 0:11:41.320 --> 0:11:45.520 That case was just an example of the overconfidence in 0:11:45.679 --> 0:11:49.880 overreaching and what it could do to different individuals. The 0:11:50.040 --> 0:11:53.560 idea that not only could they be wrong about linking 0:11:53.600 --> 0:11:56.320 a hair to a person, which they can because you 0:11:56.320 --> 0:11:58.840 can't do that at all, but that they can't even 0:11:58.920 --> 0:12:02.720 identify what is human here and what isn't. Not only 0:12:02.760 --> 0:12:06.480 did it occur in that case, but it continued to 0:12:06.600 --> 0:12:13.800 occur unchecked. That was just outrageous, all right. 0:12:13.720 --> 0:12:17.040 So joining us today is Vanessa Antone and Vanessa is 0:12:17.040 --> 0:12:20.080 a member of the National Association. 0:12:19.480 --> 0:12:20.840 Of Criminal Defense Lawyers. 0:12:20.840 --> 0:12:23.160 I think will refer to them as the NACDL, And 0:12:23.200 --> 0:12:26.839 this is just a wonderful, wonderful group. I'm a member 0:12:26.880 --> 0:12:33.160 of the NACDL, and it is a policy and advocacy 0:12:33.280 --> 0:12:38.400 organization that really is on the ground working for reforms 0:12:38.400 --> 0:12:41.199 and improvements in the criminal justice system. You're going to 0:12:41.320 --> 0:12:45.839 learn about a really remarkable project that they have been 0:12:45.880 --> 0:12:49.440 involved in with the FBI, and Vanessa is a key 0:12:49.520 --> 0:12:53.200 member of this project. And what they are doing is 0:12:53.280 --> 0:12:58.280 reading hundreds of transcripts from old cases and cases where 0:12:58.880 --> 0:13:03.800 defendants and the accused were convicted and in many cases 0:13:03.840 --> 0:13:09.080 wrongfully convicted based on hair comparison analysis. So to start, Vanessa, 0:13:09.200 --> 0:13:14.120 hair comparison analysis is also called hair microscopy, and we'll 0:13:14.240 --> 0:13:17.560 use these terms interchangeably, but tell us a little bit 0:13:17.600 --> 0:13:22.280 about what hair microscopy or hair comparison analysis is exactly. 0:13:23.440 --> 0:13:27.600 It's looking at hair under a microscope, as you would 0:13:27.640 --> 0:13:32.640 think from the title. But what a well trained hair 0:13:32.960 --> 0:13:36.800 examiner was supposed to be able to do is look 0:13:36.840 --> 0:13:41.440 at different characteristics and hair and try to make an 0:13:41.480 --> 0:13:45.839 association from those characteristics. They look at characteristics like the 0:13:45.880 --> 0:13:50.240 color and the thickness, whether it looks wavy, if it 0:13:50.320 --> 0:13:53.360 has what they call scales on the cuticle, whether it's 0:13:53.400 --> 0:13:56.800 smooth or ragged. They also look at the part of 0:13:56.840 --> 0:14:00.280 the hair that's the medula, which is the middle of 0:14:00.320 --> 0:14:04.080 the hair, and they look at the shape of that, 0:14:04.559 --> 0:14:08.720 the thickness, the color. They also look at the cortex, 0:14:08.960 --> 0:14:11.560 which is the main part of the hair, and that 0:14:11.760 --> 0:14:15.120 gives the hair characteristics like the pigment. And when they 0:14:15.160 --> 0:14:19.200 do the examination, they make note of all these characteristics 0:14:19.200 --> 0:14:21.800 in like a known sample of hair, and then they 0:14:21.800 --> 0:14:24.280 seek to compare that to the evidentiary hair. 0:14:24.760 --> 0:14:28.360 So it sounds scientific, I guess in a way. The 0:14:28.400 --> 0:14:33.760 examiner takes some hair from the suspect's head, and they 0:14:33.800 --> 0:14:36.960 know where that's coming from because it's the person that's 0:14:36.960 --> 0:14:39.280 accused of the crime, right in front of them, sitting 0:14:39.320 --> 0:14:42.200 in a jail cell. So they take that hair and 0:14:42.480 --> 0:14:45.280 put it in a little bag and label it, and 0:14:45.760 --> 0:14:48.640 they take that hair sample and compare it to what 0:14:49.040 --> 0:14:52.000 you refer to as the evidentiary hair or the unknown 0:14:52.120 --> 0:14:54.240 sample that was found at the scene of a crime. 0:14:55.160 --> 0:14:58.760 And so they're looking at characteristics of the hair found 0:14:58.800 --> 0:15:02.080 at the crime scene and and seeing if the person 0:15:02.120 --> 0:15:05.760 that they claim committed this crime has hair that matches 0:15:05.840 --> 0:15:10.760 these characteristics. But the problem seems to be that there 0:15:10.760 --> 0:15:15.520 are so many different characteristics and variables and hair that 0:15:15.720 --> 0:15:20.760 matching one hair to another, and you know, doing that 0:15:20.800 --> 0:15:22.880 to try to find out whether it came from the 0:15:22.920 --> 0:15:25.080 same person isn't as easy as. 0:15:25.000 --> 0:15:25.800 Some might think. 0:15:27.000 --> 0:15:31.400 In reading all of these transcripts from hair examiners, you know, 0:15:31.600 --> 0:15:36.440 throughout decades until two thousand, they would tell you that 0:15:36.680 --> 0:15:39.760 there's a range even in a person's own head of hair. 0:15:40.280 --> 0:15:42.120 They don't all look identical. 0:15:42.560 --> 0:15:45.320 So where does hair microscop be really run into trouble? 0:15:45.440 --> 0:15:47.000 Why isn't it reliable? 0:15:48.080 --> 0:15:54.800 Microscopic hair comparison doesn't rely on a chemical analysis or 0:15:54.920 --> 0:16:00.240 a set of concrete standards to associate or to make 0:16:00.280 --> 0:16:03.280 a comparison. It's what is known as a pattern and 0:16:03.360 --> 0:16:08.880 matching discipline. So it's basically eyeballing it. It's a subjective 0:16:09.120 --> 0:16:12.240 forensic discipline. In fact, in the words of one of 0:16:12.280 --> 0:16:16.200 the FBI hair examiners, it's the most subjective of the 0:16:16.240 --> 0:16:22.440 forensic disciplines. As another microscopic hair examiner said, you just 0:16:22.840 --> 0:16:25.760 you know, sometimes you get a feeling about a hair 0:16:25.840 --> 0:16:27.960 and you know, it just bowls you over and you 0:16:28.000 --> 0:16:30.600 just look at it. And so that's why there won't 0:16:30.600 --> 0:16:33.000 be a database. You can't make a database of that 0:16:33.120 --> 0:16:35.280 type of subjective feeling about hair. 0:16:35.640 --> 0:16:37.320 Yeah, I get it. I mean, you could make a 0:16:37.400 --> 0:16:41.720 database of people's subjective feelings about hair, but it's not 0:16:41.760 --> 0:16:44.760 going to tell you very much. But it really begs 0:16:44.760 --> 0:16:48.920 the question why were prosecutors using this to try to 0:16:48.960 --> 0:16:54.320 get convictions. If it's so subjective and so speculative, why 0:16:54.320 --> 0:16:56.560 were they using it at all. 0:16:56.600 --> 0:16:59.520 Generally they would start out operating on the you know, 0:16:59.560 --> 0:17:03.680 the trans for principle that if your hair falls out 0:17:03.880 --> 0:17:06.760 and you are in a location or you're near someone, 0:17:07.080 --> 0:17:10.760 hair can transfer to another person or to the place 0:17:10.880 --> 0:17:14.080 that you're in close proximity to. So it could give 0:17:14.160 --> 0:17:18.439 evidence of someone's presence in a certain location or with 0:17:18.480 --> 0:17:21.560 a certain person. When that is one of the few 0:17:21.920 --> 0:17:25.640 pieces of evidence you have, obviously you want to pursue that. 0:17:26.680 --> 0:17:30.359 And a lot of these cases, not all, but a 0:17:30.359 --> 0:17:34.480 lot of them were in pre DNA times, so this 0:17:34.600 --> 0:17:38.439 would be very powerful evidence when you can't just DNA 0:17:38.560 --> 0:17:41.200 test something. So what you had is the hair. 0:17:41.680 --> 0:17:45.719 But DNA testing had come out in the nineties, so 0:17:45.840 --> 0:17:49.840 why wasn't it being used on hair evidence? Why were 0:17:50.400 --> 0:17:54.520 prosecutors still an FBI examiners for that matter, still using 0:17:54.560 --> 0:17:56.240 this hair comparison analysis. 0:17:57.200 --> 0:18:01.640 When we think of DNA testing, that's nuclear DNA testing. 0:18:01.840 --> 0:18:05.560 And the problem with hair and why this happened was 0:18:05.640 --> 0:18:09.120 because unless there was tissue at the root of the hair, 0:18:09.520 --> 0:18:11.520 like if you yank your hair out and it may 0:18:11.600 --> 0:18:14.240 or may not have some tissue at the root. Unless 0:18:14.240 --> 0:18:17.879 there was tissue there that could be tested with nuclear DNA, 0:18:18.280 --> 0:18:20.879 you couldn't do a DNA test on hair. All you 0:18:20.920 --> 0:18:26.280 could do is eyeball it under a microscope. Until mitochondrial DNA, 0:18:26.600 --> 0:18:30.040 you know, a different type of DNA testing allowed testing 0:18:30.240 --> 0:18:33.639 of the hair shaft to give a result. So in 0:18:33.760 --> 0:18:39.040 all those decades that was not there, that technology wasn't 0:18:39.080 --> 0:18:42.800 being used, and it wasn't until around two thousand that 0:18:43.000 --> 0:18:46.800 even you know, the FBI lab started using that in 0:18:46.840 --> 0:18:50.280 all the cases, and that is when they could actually 0:18:50.480 --> 0:18:55.320 look at the hair and say conclusively, no, it wasn't 0:18:55.359 --> 0:18:56.400 from this individual. 0:19:06.240 --> 0:19:07.040 I want to talk. 0:19:06.880 --> 0:19:10.639 About three cases that all occurred around the Washington, DC area. 0:19:11.320 --> 0:19:14.480 One was Sante Tribble, who we mentioned earlier, where a 0:19:14.600 --> 0:19:17.760 dog hare was mistaken for a human air. Now another 0:19:17.840 --> 0:19:22.359 case was the case of Donald Eugene Gates, and Donald 0:19:22.400 --> 0:19:24.000 Gates was accused of raping and. 0:19:24.000 --> 0:19:25.240 Killing a girl in a park. 0:19:26.160 --> 0:19:30.840 Now, during his trial, an FBI special agent testified that 0:19:30.920 --> 0:19:37.360 Donald's hair was quote microscopically indistinguishable end quote from hairs 0:19:37.359 --> 0:19:42.080 found on the victim's body, and based on that that 0:19:42.119 --> 0:19:45.639 the hair from the crime scene probably belonged to Donald Gates. 0:19:46.320 --> 0:19:49.800 And so Donald was convicted and sentenced to twenty years 0:19:49.800 --> 0:19:53.439 to life in prison. And then there's yet a third case, 0:19:54.160 --> 0:19:56.760 and that is the case of an eighteen. 0:19:56.480 --> 0:19:57.879 Year old named Kirk Odom. 0:19:58.000 --> 0:20:02.120 Now this one was, you know, another sort of mind 0:20:02.160 --> 0:20:07.040 bending example of this junk science being applied, because here 0:20:07.080 --> 0:20:10.040 you have mister Odom just walking down the street one day. 0:20:10.760 --> 0:20:13.480 He's on his way to go see his infant daughter 0:20:13.560 --> 0:20:16.399 at his house, and a cop stops him on the 0:20:16.440 --> 0:20:18.080 street and says, you know, you look like. 0:20:18.040 --> 0:20:20.440 The guy in this picture. And the picture was. 0:20:20.400 --> 0:20:24.120 A sketch that had been drawn based on a description 0:20:24.280 --> 0:20:28.240 given by a woman that had been attacked blindfolded and 0:20:28.400 --> 0:20:32.200 raped by a stranger with a gun, and the victim 0:20:32.240 --> 0:20:35.240 only got a brief look at her attacker, but the 0:20:35.320 --> 0:20:39.320 officers drew the sketch based on what she described, which 0:20:39.359 --> 0:20:43.240 was basically a young black man. Based on that, the 0:20:43.359 --> 0:20:48.040 officer arrests Kirk Odem. And you have another example of 0:20:48.080 --> 0:20:52.800 an FBI agent testifying at a trial. And here the 0:20:52.840 --> 0:20:57.080 agent gets on the stand and says kirk Odom's hair 0:20:57.640 --> 0:21:01.479 matches essentially hair found on the victor's nightgown. And they 0:21:01.600 --> 0:21:04.800 used the same sort of language that is indistinguishable from 0:21:04.880 --> 0:21:08.679 Kirk's hair. Kirk spent over twenty two years in prison. 0:21:09.760 --> 0:21:15.600 So what happens next is mitochondrial DNA testing finally becomes available, right, 0:21:15.640 --> 0:21:19.959 that's the DNA testing of hair. And all three of 0:21:19.960 --> 0:21:23.560 these men's hair was tested, and what do you know, 0:21:24.480 --> 0:21:27.199 none of their DNA matched any of the hairs that 0:21:27.240 --> 0:21:30.080 were found at the scenes of these crimes. And at 0:21:30.080 --> 0:21:33.200 this point, the FBI couldn't hide behind this anymore. So 0:21:33.600 --> 0:21:35.800 tell us, Vanessa, what happens next. 0:21:36.480 --> 0:21:39.880 Well, I was lucky enough to be working with an ACDL. 0:21:40.240 --> 0:21:47.240 When NACDL joined in work in a partnership with the FBI, 0:21:47.720 --> 0:21:51.640 the Department of Justice and the Innocence Project to conduct 0:21:51.680 --> 0:21:55.600 a review of the FBI hair examiner's cases from you know, 0:21:55.640 --> 0:21:58.560 whenever they started, when the earliest we could find up 0:21:58.600 --> 0:22:02.840 to about two thousand, and that came about for a 0:22:02.920 --> 0:22:06.879 couple reasons, one of which was the National Academy of 0:22:06.960 --> 0:22:11.520 Sciences Report on Strengthening Forensic Science, which looked at patterned 0:22:11.520 --> 0:22:16.320 and matching disciplines, including specifically hair comparison, and said, you know, 0:22:16.359 --> 0:22:19.480 it just doesn't have a sufficient foundation to be used 0:22:19.760 --> 0:22:21.640 for identifying people. 0:22:22.280 --> 0:22:25.400 So the NACDL is working with the FBI and you 0:22:25.600 --> 0:22:28.840 start going through all of these old cases. You're reading 0:22:28.880 --> 0:22:31.879 the transcripts, and these are trials where hair evidence was 0:22:32.040 --> 0:22:33.920 used to get a conviction. 0:22:34.520 --> 0:22:35.440 So what did you find. 0:22:36.520 --> 0:22:40.800 Part of the frustration that the lawyers had and that 0:22:41.280 --> 0:22:44.399 we all had reading these transcripts back to back was 0:22:44.440 --> 0:22:49.160 the continued nature of the same statements that were unscientific, 0:22:49.640 --> 0:22:52.720 and so we called them error type one, two and three. 0:22:53.560 --> 0:22:58.840 And in Layman's terms, air type one is basically where 0:22:58.840 --> 0:23:02.760 they're making a one to one association between a person 0:23:02.920 --> 0:23:06.480 and a hair, which can never be done with microscopic 0:23:06.480 --> 0:23:10.760 hare comparison. So that's when an examiner either states or 0:23:10.840 --> 0:23:15.199 implies that the evidentiary hair can be associated to a 0:23:15.320 --> 0:23:18.879 specific individual to the exclusion of all others, and that 0:23:18.920 --> 0:23:24.080 would include statements indicating that hair is unique. Sometimes an 0:23:24.119 --> 0:23:27.520 analogy of a fingerprint was used in testimony. Well, it's 0:23:27.560 --> 0:23:30.320 not exactly like a fingerprint, but it kind of is, 0:23:30.560 --> 0:23:33.760 and that's why we can say that this hair came 0:23:33.800 --> 0:23:37.040 from this person. So that's that one to one association, 0:23:37.400 --> 0:23:41.760 and that is absolutely incorrect. You can't say hair is 0:23:41.920 --> 0:23:44.720 unique and use it to associate people. You know, you 0:23:44.720 --> 0:23:47.000 shouldn't have to say it's like this or it's like that. 0:23:47.200 --> 0:23:49.600 You should just say what it is. And if what 0:23:49.760 --> 0:23:53.280 it is isn't enough, then it shouldn't be used to 0:23:53.640 --> 0:23:57.920 connect the hair to a person. That wasn't really the 0:23:57.960 --> 0:24:04.280 most common type of error or scientifically invalid statement we saw. 0:24:04.800 --> 0:24:08.399 It was usually what we call air two and what 0:24:08.520 --> 0:24:12.160 I'm talking about. There are statements like, well, it would 0:24:12.200 --> 0:24:16.320 be rare if two hairs that looked this similar came 0:24:16.600 --> 0:24:20.199 from two different individuals, And those were the things we 0:24:20.200 --> 0:24:24.919 were looking for in the review, and unfortunately found that 0:24:25.160 --> 0:24:28.840 in the majority, the vast majority, over ninety percent of 0:24:28.920 --> 0:24:35.440 cases where FBI examiners gave testimony, the conclusions were exaggerated, 0:24:35.480 --> 0:24:38.960 and there were scientifically unsupported statements in the testimony. 0:24:39.440 --> 0:24:43.040 Look, I always knew this was bad, but ninety percent 0:24:43.200 --> 0:24:46.200 of the cases, I mean, that's just an insane statistic. 0:24:46.840 --> 0:24:49.439 And you know, our listeners really need to remember that 0:24:49.560 --> 0:24:53.920 these weren't just any experts coming in to give testimony. 0:24:53.960 --> 0:24:54.920 This is the FBI. 0:24:55.520 --> 0:24:58.520 This is, you know, an organization that has a reputation 0:24:58.760 --> 0:25:02.760 for having a attained higher knowledge, you know, knowing more 0:25:02.840 --> 0:25:04.159 than just everyday people. 0:25:05.240 --> 0:25:10.479 When an FBI examiner comes in, especially in a state case, 0:25:11.119 --> 0:25:14.520 great weight is given to what they say. It is 0:25:15.160 --> 0:25:19.080 very impressive to have the FBI show up and explain 0:25:19.800 --> 0:25:23.880 a discipline and tell you what something means in their experience. 0:25:24.440 --> 0:25:29.000 And that's what happened. In some cases, an FBI was 0:25:29.040 --> 0:25:32.760 asked to do hair examination when the local examiners couldn't 0:25:32.800 --> 0:25:35.840 make an association, which makes the whole thing even more 0:25:36.200 --> 0:25:39.840 questionable because the inquiry should end there. You shouldn't be 0:25:39.880 --> 0:25:42.800 able to try to find someone else who will give 0:25:42.840 --> 0:25:47.840 you the answer that you want. Also, they found that 0:25:47.880 --> 0:25:51.639 the FBI hair examiners kept their identity as law enforcement 0:25:51.680 --> 0:25:55.719 agents first and foremost, and they found that instead of 0:25:55.760 --> 0:26:00.840 acting like impartial scientists, the FBI lab culture at the 0:26:00.960 --> 0:26:05.800 time embraced the agent examiners acting like more like detectives, 0:26:06.359 --> 0:26:10.159 and that that approach should have been pulled back. And remember, no, 0:26:10.640 --> 0:26:14.000 you're independent. This is scientific. You're not part of the 0:26:14.400 --> 0:26:17.399 law enforcement investigative team. You're a scientist. 0:26:18.119 --> 0:26:21.360 So, Vanessa, you read transcripts from a ton of cases, 0:26:21.480 --> 0:26:25.080