WEBVTT - #152 Wrongful Conviction: Junk Science - Hair Microscopy Evidence 0:00:00.520 --> 0:00:04.680 Washington, DC. A muggy summer day finally starts to cool 0:00:04.720 --> 0:00:10.320 as night falls, street lights turn on, Crickets chirp, there's 0:00:10.360 --> 0:00:12.680 the soft jingle of the tags on a dog collar. 0:00:13.640 --> 0:00:17.320 A black poodle walks up someone's porch steps, sniffs around. 0:00:18.040 --> 0:00:20.400 The dog leaps back down the stairs when its owner 0:00:20.440 --> 0:00:24.200 calls its name. A few hours later, on those same 0:00:24.280 --> 0:00:27.520 porch steps, the man who lives there slowly walks up, 0:00:27.920 --> 0:00:32.640 and a masked figure walks up behind him. There's a gunshot. 0:00:33.080 --> 0:00:36.920 Someone screams. The shooter makes a run for it, ripping 0:00:36.920 --> 0:00:39.960 a stocking mask from his face. It lands on a 0:00:40.000 --> 0:00:43.320 porch step as he disappears down the street into the night. 0:00:46.680 --> 0:00:49.120 You live down the street from where the gunshot went off. 0:00:50.120 --> 0:00:52.839 Three days later, you're hanging out with your girlfriend and 0:00:52.880 --> 0:00:57.480 your mom's basement, sitting on the couch watching TV. Your 0:00:57.480 --> 0:01:01.880 mom is upstairs cleaning up after dinner, and then there's 0:01:01.920 --> 0:01:06.160 a knock at the door. You hear someone introduce themselves 0:01:06.160 --> 0:01:10.280 as an officer, officer something or other, and damn it, 0:01:10.360 --> 0:01:13.800 you think, and your teenage mind you figure he must 0:01:13.800 --> 0:01:15.679 be there about the parking ticket you got a few 0:01:15.720 --> 0:01:18.880 weeks ago and didn't pay yet. Your mom's going to 0:01:18.959 --> 0:01:24.240 be pissed. You head upstairs, but they cuff you and 0:01:24.400 --> 0:01:28.240 take you away. You're brought down to the station and 0:01:28.319 --> 0:01:30.840 put in a cell, and they tell you that you'll 0:01:30.840 --> 0:01:35.000 be tried for the murder of your neighbor. The next 0:01:35.080 --> 0:01:38.080 day you're transferred to the county jail, and you're beginning 0:01:38.120 --> 0:01:41.280 to absorb the shock of it all. The one thing 0:01:41.319 --> 0:01:43.679 that you can't get past is the filth. It's just 0:01:44.000 --> 0:01:47.440 terrible in there, everything from the bugs to the food, 0:01:47.640 --> 0:01:52.520 to the living conditions, and the noise. The noise is unbearable. 0:01:52.960 --> 0:01:56.920 You can hardly sleep. You begin to miss out on things. 0:01:57.320 --> 0:02:01.680 Your family summer vacation comes and goes. Six months pass. 0:02:02.480 --> 0:02:06.040 You would have had your ged by now. A year 0:02:06.080 --> 0:02:08.680 slips by, and then a year turns into a year 0:02:08.680 --> 0:02:12.240 and a half. Your nieces and nephews, the ones that 0:02:12.280 --> 0:02:15.560 you helped raise or growing up. You've spoken to them 0:02:15.600 --> 0:02:18.440 a few times, but they haven't come to visit. Are 0:02:18.440 --> 0:02:22.120 they thinking that their uncle may have done this? You 0:02:22.240 --> 0:02:24.200 miss out on the final years of being a care 0:02:24.280 --> 0:02:30.320 free teen. It seems as though everything's moving on without you. Finally, 0:02:30.960 --> 0:02:36.160 after two agonizing years, your case goes to trial. You 0:02:36.240 --> 0:02:39.480 want to get your life back. You didn't kill anyone. 0:02:40.200 --> 0:02:43.760 You were in that same basement all night when someone 0:02:43.840 --> 0:02:46.640 else climbed your neighbors steps and ended his life with 0:02:46.720 --> 0:02:53.120 a single gunshot blast of the head. A few weeks ago, 0:02:53.160 --> 0:02:55.560 an officer came to your cell and cut some of 0:02:55.600 --> 0:02:58.560 your hair. Of course, you willingly let them take it 0:02:58.840 --> 0:03:03.200 because you were sure help prove your innocence. As you 0:03:03.200 --> 0:03:06.160 sit in the courtroom at your trial, the prosecutor says 0:03:06.200 --> 0:03:08.680 that there was a nylon stocking mass found at the 0:03:08.680 --> 0:03:11.960 scene of the crime. An FBI agent takes the stand 0:03:12.000 --> 0:03:15.640 for the prosecution and tells the jury, I compare the 0:03:15.720 --> 0:03:19.520 defendant's hair to the thirteen hairs found on the mask. 0:03:20.120 --> 0:03:23.000 This agent tells the jury that the defendant's hair is 0:03:23.080 --> 0:03:28.840 indistinguishable from one of those thirteen hairs. The prosecutor says, 0:03:29.480 --> 0:03:33.919 there's one chance, perhaps for all we know in ten million, 0:03:34.320 --> 0:03:38.080 that it could be someone else's hair. This single hair 0:03:38.160 --> 0:03:43.160 proves critical because it's the only physical evidence that ties 0:03:43.240 --> 0:03:48.400 you to the homicide. You're told the jury's reached a verdict. 0:03:48.760 --> 0:03:51.160 That shuffle back into the courtroom, and none of them 0:03:51.160 --> 0:03:54.800 will look at you when you hear the word guilty. 0:03:55.080 --> 0:04:00.480 There's the sudden eruption of uncontrolled sobbing, the turning on 0:04:00.560 --> 0:04:04.720 of a spigot. There's the unraveling of your mother in Wales. 0:04:04.960 --> 0:04:08.720 Not my baby, my baby didn't do it. Your aunts 0:04:08.720 --> 0:04:12.080 are crying, your relatives are trying to console each other. 0:04:12.400 --> 0:04:16.640 There's just a medley of weeping and misery. You feel 0:04:16.680 --> 0:04:19.120 like you're going to pass out. The room is sideways, 0:04:19.160 --> 0:04:22.320 and then it's upside down, and then you're all white. 0:04:23.200 --> 0:04:27.839 All you can hear, all you can see. Everything turns white, 0:04:28.040 --> 0:04:32.599 and you go numb. You're sentenced to twenty years to 0:04:32.680 --> 0:04:37.599 life and stay prison, and then there is nothing. Everything 0:04:38.160 --> 0:04:45.240 goes blank. You do everything you can to prove your innocence. 0:04:46.000 --> 0:04:49.880 You write letters, study the law. Your father comes to 0:04:49.960 --> 0:04:53.320 visit you just about every single Saturday. But he dies 0:04:53.440 --> 0:04:57.120 four years after your arrest. Your mom dies two years 0:04:57.120 --> 0:05:00.120 after that, and you can't go to either of their funerals. 0:05:00.839 --> 0:05:04.039 You can't help but to think, did this kill them? 0:05:04.440 --> 0:05:09.479 My wrongful conviction. You sit in your cell, numb most days, 0:05:09.839 --> 0:05:12.520 and you try to recall little things that will bring 0:05:12.600 --> 0:05:18.600 some comfort. To smell your mother's cooking, sitting around playing cards, 0:05:18.600 --> 0:05:22.520 with your friends, holding hands with your girlfriend, and your 0:05:22.520 --> 0:05:27.600 mother's basement watching TV. You live a lifetime in that prison, 0:05:28.560 --> 0:05:33.080 thirty three long years. It takes all of that time 0:05:33.320 --> 0:05:36.440 for the district attorney to finally agree to test the 0:05:36.560 --> 0:05:39.920 DNA contained in the hair that was found on that 0:05:40.040 --> 0:05:42.920 stocking mask that dropped to the steps of that porch. 0:05:43.920 --> 0:05:46.800 It turns out the way you knew it would. Your 0:05:46.880 --> 0:05:51.080 DNA does not match any of those thirteen hairs. But 0:05:51.160 --> 0:05:53.960 they do figure out who one of the hairs belongs to, 0:05:54.360 --> 0:05:58.440 and it's not a person. Turns out that one of 0:05:58.440 --> 0:06:01.559 the hairs they found on that stock mask and argued 0:06:01.640 --> 0:06:04.919 that the jury was a human hair belonged to that poodle. 0:06:06.320 --> 0:06:09.040 When you re enter the world, they say you're free, 0:06:09.279 --> 0:06:12.240 but are you really. You went in as an eighteen 0:06:12.320 --> 0:06:15.240 year old boy and came out a fifty one year 0:06:15.240 --> 0:06:19.799 old man, and you've aged beyond your years. You're fighting 0:06:19.800 --> 0:06:22.720 an illness caused by the burden of carrying around your 0:06:22.720 --> 0:06:27.039 innocence for your entire adult life. You die at the 0:06:27.040 --> 0:06:30.359 age of fifty nine, enjoying only eight free years with 0:06:30.440 --> 0:06:34.599 what's left of your family. But your death, your suffering 0:06:34.920 --> 0:06:39.400 is not in vain. After you were found to be innocent, 0:06:39.800 --> 0:06:43.919 the FBI starts to re examine over three thousand cases 0:06:43.960 --> 0:06:48.200 where similar evidence was used. They're looking for other people, who, 0:06:48.360 --> 0:06:52.159 like you, were wrongfully convicted of crimes they didn't commit, 0:06:52.920 --> 0:06:56.560 people whose lives were destroyed by the junk science of 0:06:56.720 --> 0:07:05.120 hair comparison analysis. The story you just heard is based 0:07:05.120 --> 0:07:09.479 on true events of Sante Trebble's life. He was wrongfully 0:07:09.520 --> 0:07:13.840 convicted in nineteen seventy eight and exonerated in twenty twelve. 0:07:14.520 --> 0:07:19.640 He passed away in July of twenty twenty. This episode 0:07:19.960 --> 0:07:28.040 is dedicated to him. I'm Josh duban civil rights and 0:07:28.080 --> 0:07:32.000 criminal defense attorney and Innocent ambassador to the Innocence Project 0:07:32.040 --> 0:07:35.920 in New York. Even when examined under a microscope, the 0:07:36.040 --> 0:07:39.600 similarities that can be observed between two hairs are open 0:07:39.680 --> 0:07:43.120 to a wide interpretation. In other words, there are no 0:07:43.320 --> 0:07:48.080 definitive traits that can prove with any scientific certainty that 0:07:48.160 --> 0:07:51.920 a suspect's hair matches a hair found at a crime scene. 0:07:52.600 --> 0:07:56.200 Yet hair comparison analysis was still being used to falsely 0:07:56.280 --> 0:08:00.120 identify and convict innocent people up until the year two 0:08:00.120 --> 0:08:04.720 thousand and Today, there are still people who are incarcerated 0:08:04.760 --> 0:08:09.120 that were convicted based on this false evidence. So how 0:08:09.160 --> 0:08:12.320 did this evidence get admitted into courts in the first place. 0:08:13.080 --> 0:08:17.520 Turns out, hair my Crosscoby was born in the eighteen hundreds, 0:08:17.840 --> 0:08:20.880 and the methods used to analyze and compare human hairs 0:08:21.280 --> 0:08:33.800 haven't changed much since. In eighteen sixty nine, a man 0:08:33.880 --> 0:08:36.920 named John Dorsey was accused of killing his wife by 0:08:36.960 --> 0:08:38.760 beating her over the head with a club in his 0:08:38.800 --> 0:08:44.080 own yard in Massachusetts. During the trial, two men claimed 0:08:44.080 --> 0:08:47.000 that they had seen hairs attached to the alleged murder weapon, 0:08:47.520 --> 0:08:50.920 and that the hair appeared to be brunette human hair 0:08:51.720 --> 0:08:55.640 that was the color of mister Dorsey's wife's hair. Mister 0:08:55.760 --> 0:08:59.280 Dorsey was shocked his wife was brunette, but so were 0:08:59.320 --> 0:09:03.200 as horses. According to mister Dorsey, the club wasn't a 0:09:03.280 --> 0:09:06.040 murder weapon, it was just one of many pieces of 0:09:06.080 --> 0:09:09.400 wood that was set out by the horse stables. The 0:09:09.480 --> 0:09:12.360 hair and the clubs didn't belong to his wife, but 0:09:12.520 --> 0:09:15.000 was a hair that had fallen from his horse's tail. 0:09:16.200 --> 0:09:18.880 But the court ruled that mister Dorsey couldn't present this 0:09:18.960 --> 0:09:23.480 account about the horse hair. Meanwhile, the testimony from the 0:09:23.520 --> 0:09:27.640 men claiming that the hair was mister Dorsey's wife's was permitted. 0:09:29.000 --> 0:09:33.320 Mister Dorsey was eventually convicted of killing his wife. This 0:09:33.480 --> 0:09:36.760 was the first time a coord admitted hair comparison analysis 0:09:36.760 --> 0:09:40.439 as evidence in our legal system, and it definitely wouldn't 0:09:40.440 --> 0:09:44.480 be the last. Over a century later, animal hair and 0:09:44.559 --> 0:09:47.800 human hair would again be an issue in the Sante 0:09:47.880 --> 0:09:48.600 triple case. 0:09:53.600 --> 0:09:57.800 That case was just an example of the overconfidence in 0:09:57.960 --> 0:10:02.200 overreaching and what it could do to different individuals. The 0:10:02.320 --> 0:10:05.840 idea that not only could they be wrong about linking 0:10:05.880 --> 0:10:08.600 a hare to a person, which they can because you 0:10:08.640 --> 0:10:11.120 can't do that at all, but that they can't even 0:10:11.200 --> 0:10:15.000 identify what is human here and what isn't. Not only 0:10:15.040 --> 0:10:18.760 did it occur in that case, but it continued to 0:10:18.880 --> 0:10:26.000 occur unchecked. That was just outrageous, all right. 0:10:26.040 --> 0:10:29.319 So joining us today is Vanessa Antone and Vanessa is 0:10:29.320 --> 0:10:33.120 a member of the National Association of Criminal Defense Lawyers. 0:10:33.120 --> 0:10:35.440 I think will refer to them as the NACDL, And 0:10:35.480 --> 0:10:39.120 this is just a wonderful, wonderful group. I'm a member 0:10:39.160 --> 0:10:45.439 of the NACDL, and it is a policy and advocacy 0:10:45.559 --> 0:10:50.679 organization that really is on the ground working for reforms 0:10:50.679 --> 0:10:53.480 and improvements in the criminal justice system. You're going to 0:10:53.600 --> 0:10:58.120 learn about a really remarkable project that they have been 0:10:58.160 --> 0:11:01.720 involved in with the FBI, and Vanessa is a key 0:11:01.840 --> 0:11:05.480 member of this project. And what they are doing is 0:11:05.559 --> 0:11:10.559 reading hundreds of transcripts from old cases and cases where 0:11:11.120 --> 0:11:16.080 defendants and the accused were convicted and in many cases 0:11:16.120 --> 0:11:21.360 wrongfully convicted based on hair comparison analysis. So to start, Vanessa, 0:11:21.480 --> 0:11:26.400 hair comparison analysis is also called hair microscopy, and we'll 0:11:26.520 --> 0:11:29.840 use these terms interchangeably, but tell us a little bit 0:11:29.880 --> 0:11:34.600 about what hair microscopy or hair comparison analysis is exactly. 0:11:35.720 --> 0:11:39.880 It's looking at hair under a microscope, as you would 0:11:39.920 --> 0:11:44.920 think from the title. But what a well trained hair 0:11:45.240 --> 0:11:49.079 examiner was supposed to be able to do is look 0:11:49.120 --> 0:11:53.720 at different characteristics and hair and try to make an 0:11:53.760 --> 0:11:58.120 association from those characteristics. They look at characteristics like the 0:11:58.160 --> 0:12:02.520 color and the thickness, whether it looks wavy, if it 0:12:02.600 --> 0:12:05.640 has what they call scales on the cuticle, whether it's 0:12:05.679 --> 0:12:09.080 smooth or ragged. They also look at the part of 0:12:09.120 --> 0:12:12.520 the hair that's the medula, which is the middle of 0:12:12.600 --> 0:12:16.360 the hair, and they look at the shape of that, 0:12:16.840 --> 0:12:21.000 the thickness, the color. They also look at the cortex, 0:12:21.240 --> 0:12:23.840 which is the main part of the hair, and that 0:12:24.040 --> 0:12:27.400 gives the hair characteristics like the pigment. And when they 0:12:27.440 --> 0:12:31.320 do the examination, they make note of all these characteristics 0:12:31.520 --> 0:12:34.079 in like a known sample of hair, and then they 0:12:34.080 --> 0:12:36.560 seek to compare that to the evidentiary hair. 0:12:37.040 --> 0:12:40.640 So it sounds scientific, I guess in a way. The 0:12:40.720 --> 0:12:46.040 examiner takes some hair from the suspect's head and they 0:12:46.080 --> 0:12:49.240 know where that's coming from because it's the person that's 0:12:49.240 --> 0:12:51.560 accused of the crime right in front of them, sitting 0:12:51.600 --> 0:12:54.480 in a jail cell. So they take that hair and 0:12:54.760 --> 0:12:57.560 put it in a little bag and label it, and 0:12:58.040 --> 0:13:01.400 they take that hair sample compare it to what you 0:13:01.520 --> 0:13:04.760 refer to as the evidentiary hair or the unknown sample 0:13:04.840 --> 0:13:07.640 that was found at the scene of a crime. And 0:13:08.160 --> 0:13:11.200 so they're looking at characteristics of the hair found at 0:13:11.200 --> 0:13:14.520 the crime scene and then seeing if the person that 0:13:14.559 --> 0:13:19.280 they claim committed this crime has hair that matches these characteristics. 0:13:19.320 --> 0:13:23.320 But the problem seems to be that there are so 0:13:23.440 --> 0:13:28.760 many different characteristics and variables and hair that matching one 0:13:28.800 --> 0:13:33.480 hair to another, and you know, doing that to try 0:13:33.480 --> 0:13:35.800 to find out whether it came from the same person 0:13:35.920 --> 0:13:38.359 isn't as easy as some might think. 0:13:39.280 --> 0:13:43.679 And reading all of these transcripts from hair examiners, you know, 0:13:43.880 --> 0:13:48.720 throughout decades until two thousand, they would tell you that 0:13:48.960 --> 0:13:52.040 there's a range, even in a person's own head of hair. 0:13:52.559 --> 0:13:54.400 They don't all look identical. 0:13:54.840 --> 0:13:56.920 So where does hair my cross could be really run 0:13:56.960 --> 0:13:59.280 into trouble? Why isn't it reliable? 0:14:00.360 --> 0:14:07.080 Microscopic hair comparison doesn't rely on a chemical analysis or 0:14:07.200 --> 0:14:12.520 a set of concrete standards to associate or to make 0:14:12.559 --> 0:14:15.559 a comparison. It's what is known as a pattern and 0:14:15.640 --> 0:14:21.160 matching discipline. So it's basically eyeballing it. It's a subjective 0:14:21.400 --> 0:14:24.520 forensic discipline. In fact, in the words of one of 0:14:24.560 --> 0:14:28.480 the FBI hair examiners, it's the most subjective of the 0:14:28.520 --> 0:14:34.760 forensic disciplines. As another microscopic hair examiner said, you just 0:14:35.120 --> 0:14:38.040 you know, sometimes you get a feeling about a hair 0:14:38.120 --> 0:14:40.240 and you know, it just bowls you over and you 0:14:40.320 --> 0:14:42.840 just look at it. And so that's why there won't 0:14:42.880 --> 0:14:45.280 be a database. You can't make a database of that 0:14:45.400 --> 0:14:47.560 type of subjective feeling about hair. 0:14:47.920 --> 0:14:49.600 Yeah, I get it. I mean you could make a 0:14:49.680 --> 0:14:54.000 database of people's subjective feelings about hair, but it's not 0:14:54.080 --> 0:14:57.040 going to tell you very much, But it really begs 0:14:57.040 --> 0:15:01.200 the question why were prosecutors using this to try to 0:15:01.240 --> 0:15:06.600 get convictions. If it's so subjective and so speculative, why 0:15:06.640 --> 0:15:08.840 were they using it at all. 0:15:08.880 --> 0:15:13.280 Generally, they would start out operating on the transfer principle 0:15:13.640 --> 0:15:16.880 that if your hair falls out and you are in 0:15:16.960 --> 0:15:20.640 a location or you're near someone, hair can transfer to 0:15:20.760 --> 0:15:24.040 another person or to the place that you're in close 0:15:24.080 --> 0:15:29.440 proximity to, So it could give evidence of someone's presence 0:15:29.440 --> 0:15:32.560 in a certain location or with a certain person. When 0:15:32.560 --> 0:15:35.480 that is one of the few pieces of evidence you have, 0:15:35.600 --> 0:15:40.560 obviously you want to pursue that. And a lot of 0:15:40.640 --> 0:15:43.360 these cases, not all, but a lot of them were 0:15:43.400 --> 0:15:48.720 in pre DNA times, so this would be very powerful 0:15:48.760 --> 0:15:51.640 evidence when you can't just DNA test something. 0:15:51.960 --> 0:15:53.480 So what you had is the hair. 0:15:53.960 --> 0:15:58.000 But DNA testing could come out in the nineties, So 0:15:58.120 --> 0:16:02.160 why wasn't it being used on hair evidence? Why were 0:16:02.680 --> 0:16:06.800 prosecutors still an FBI examiners for that matter, still using 0:16:06.840 --> 0:16:08.560 this hair comparison analysis. 0:16:09.480 --> 0:16:13.920 When we think of DNA testing, that's nuclear DNA testing. 0:16:14.120 --> 0:16:17.880 And the problem with hair and why this happened was 0:16:17.960 --> 0:16:21.400 because unless there was tissue at the root of the hair, 0:16:21.800 --> 0:16:23.800 Like if you yank your hair out and it may 0:16:23.920 --> 0:16:26.520 or may not have some tissue at the root. Unless 0:16:26.520 --> 0:16:30.200 there was tissue there that could be tested with nuclear DNA, 0:16:30.560 --> 0:16:33.160 you couldn't do a DNA test on hair. All you 0:16:33.200 --> 0:16:38.560 could do is eyeball it under a microscope until mitochondrial DNA, 0:16:38.880 --> 0:16:42.600 you know, different type of DNA testing allowed testing of 0:16:42.680 --> 0:16:46.200 the hair shaft to give a result. So in all 0:16:46.280 --> 0:16:51.960 those decades that was not there, that technology wasn't being used, 0:16:52.000 --> 0:16:55.960 and it wasn't until around two thousand that even you know, 0:16:56.120 --> 0:16:59.880 the FBI lab started using that in all the cases, 0:17:00.080 --> 0:17:03.240 and that is when they could actually look at the 0:17:03.320 --> 0:17:08.680 hair and say conclusively, no, it wasn't from this individual. 0:17:18.520 --> 0:17:21.160 I want to talk about three cases that all occurred 0:17:21.160 --> 0:17:25.280 around the Washington, DC area. One was Sante Tribble, who 0:17:25.320 --> 0:17:28.320 we mentioned earlier, where a dog hare was mistaken for 0:17:28.359 --> 0:17:31.840 a human air. Now, another case was the case of 0:17:31.920 --> 0:17:36.119 Donald Eugene Gates, and Donald Gates was accused of raping 0:17:36.160 --> 0:17:39.680 and killing a girl in a park. Now, during his trial, 0:17:39.960 --> 0:17:45.000 an FBI special agent testified that Donald's hair was quote 0:17:45.280 --> 0:17:51.000 microscopically indistinguishable end quote from hairs found on the victim's body, 0:17:52.000 --> 0:17:55.399 and based on that that the hair from the crime 0:17:55.440 --> 0:17:59.600 scene probably belonged to Donald Gates. And so Donald was 0:17:59.640 --> 0:18:03.000 convicted and sentenced to twenty years to life in prison. 0:18:04.040 --> 0:18:07.600 And then there's yet a third case, and that is 0:18:07.640 --> 0:18:10.159 the case of an eighteen year old named kirk Odom. 0:18:10.280 --> 0:18:14.400 Now this one was, you know, another sort of mind 0:18:14.440 --> 0:18:19.320 bending example of this junk science being applied, because here 0:18:19.400 --> 0:18:22.320 you have mister Odom just walking down the street one day. 0:18:23.040 --> 0:18:25.760 He's on his way to go see his infant daughter 0:18:25.880 --> 0:18:28.680 at his house, and a cop stops him on the 0:18:28.720 --> 0:18:30.680 street and says, you know, you look like the guy 0:18:30.800 --> 0:18:33.679 in this picture. And the picture was a sketch that 0:18:33.800 --> 0:18:37.119 had been drawn based on a description given by a 0:18:37.160 --> 0:18:41.560 woman that had been attacked, blindfolded and raped by a 0:18:41.600 --> 0:18:44.960 stranger with a gun. And the victim only got a 0:18:44.960 --> 0:18:48.600 brief look at her attacker, but the officers drew the 0:18:48.680 --> 0:18:52.560 sketch based on what she described, which was basically a 0:18:52.560 --> 0:18:57.800 young black man. Based on that, the officer arrests kirk Odem. 0:18:58.359 --> 0:19:02.639 And you have another example of an FBI agent testifying 0:19:03.080 --> 0:19:06.000 at a trial. And here the agent gets on the 0:19:06.040 --> 0:19:11.879 stand and says, kirk Odom's hair matches essentially hair found 0:19:11.880 --> 0:19:14.760 on the victim's nightgown, and they use the same sort 0:19:14.800 --> 0:19:19.080 of language that is indistinguishable from Kirk's hair. Kirk spent 0:19:19.200 --> 0:19:23.399 over twenty two years in prison. So what happens next 0:19:23.440 --> 0:19:28.280 is mitochondrial DNA testing finally becomes available, right, that's the 0:19:28.359 --> 0:19:32.919 DNA testing of hair. And all three of these men's 0:19:33.040 --> 0:19:37.040 hair was tested, and what do you know, none of 0:19:37.080 --> 0:19:40.000 their DNA matched any of the hairs that were found 0:19:40.040 --> 0:19:42.800 at the scenes of these crimes. And at this point, 0:19:42.800 --> 0:19:46.719 the FBI couldn't hide behind this anymore. So tell us, Vanessa, 0:19:46.800 --> 0:19:47.679 what happens next. 0:19:48.760 --> 0:19:52.240 Well, I was lucky enough to be working with ANACDL 0:19:52.520 --> 0:19:59.800 when NACDL joined in work in a partnership with the FBI, 0:20:00.080 --> 0:20:03.920 the Department of Justice, and the Innocence Project to conduct 0:20:03.960 --> 0:20:07.800 a review of the FBI Hair Examiner's cases from you know, 0:20:07.960 --> 0:20:10.840 whenever they started, when the earliest we could find up 0:20:10.880 --> 0:20:15.119 to about two thousand and that came about for a 0:20:15.200 --> 0:20:19.199 couple reasons, one of which was the National Academy of 0:20:19.240 --> 0:20:23.800 Sciences Report on Strengthening Forensic Science, which looked at patterned 0:20:23.800 --> 0:20:28.600 and matching disciplines, including specifically hair comparison and said, you know, 0:20:28.640 --> 0:20:31.760 it just doesn't have a sufficient foundation to be used 0:20:32.040 --> 0:20:33.920 for identifying people. 0:20:34.560 --> 0:20:37.720 So the NACDL is working with the FBI, and you 0:20:37.880 --> 0:20:41.119 start going through all of these old cases. You're reading 0:20:41.160 --> 0:20:44.199 the transcripts, and these are trials where hair evidence was 0:20:44.359 --> 0:20:47.800 used to get a conviction. So what did you find. 0:20:48.800 --> 0:20:53.080 Part of the frustration that the lawyers had and that 0:20:53.560 --> 0:20:56.679 we all had reading these transcripts back to back was 0:20:56.720 --> 0:21:01.440 the continued nature of the same states that were unscientific, 0:21:01.920 --> 0:21:05.000 and so we called them error type one, two, and three. 0:21:05.840 --> 0:21:11.120 And in Layman's terms, air type one is basically where 0:21:11.119 --> 0:21:15.040 they're making a one to one association between a person 0:21:15.200 --> 0:21:18.760 and a hair, which can never be done with microscopic 0:21:18.800 --> 0:21:23.040 hare comparison. So that's when an examiner either states or 0:21:23.119 --> 0:21:27.520 implies that the evidentiary hair can be associated to a 0:21:27.600 --> 0:21:31.159 specific individual to the exclusion of all others. And that 0:21:31.200 --> 0:21:36.359 would include statements indicating that hair is unique. Sometimes an 0:21:36.400 --> 0:21:39.840 analogy of a fingerprint was used in testimony. Well, it's 0:21:39.840 --> 0:21:42.600 not exactly like a fingerprint, but it kind of is, 0:21:42.840 --> 0:21:46.080 and that's why we can say that this hair came 0:21:46.080 --> 0:21:49.320 from this person. So that's that one to one association, 0:21:49.680 --> 0:21:54.040 and that is absolutely incorrect. You can't say hair is 0:21:54.200 --> 0:21:57.000 unique and use it to associate people. You know, you 0:21:57.000 --> 0:21:59.280 shouldn't have to say it's like this or it's like that. 0:21:59.480 --> 0:22:02.200 You should just what it is, and if what it 0:22:02.320 --> 0:22:06.320 is isn't enough, then it shouldn't be used to connect 0:22:06.320 --> 0:22:10.520 the hair to a person. That wasn't really the most 0:22:10.920 --> 0:22:16.560 common type of error or scientifically invalid statement we saw. 0:22:17.080 --> 0:22:20.680 It was usually what we call air two and what 0:22:20.800 --> 0:22:24.440 I'm talking about. There are statements like, well, it would 0:22:24.480 --> 0:22:28.600 be rare if two hairs that looked this similar came 0:22:28.880 --> 0:22:32.479 from two different individuals, and those were the things we 0:22:32.480 --> 0:22:37.320 were looking for in the review, and unfortunately found that 0:22:37.440 --> 0:22:41.119 in the majority, the vast majority, over ninety percent of 0:22:41.240 --> 0:22:47.720 cases where FBI examiners gave testimony, the conclusions were exaggerated 0:22:47.760 --> 0:22:51.240 and there were scientifically unsupported statements in the testimony. 0:22:51.760 --> 0:22:55.320 Look, I always knew this was bad, but ninety percent 0:22:55.480 --> 0:22:58.480 of the cases, I mean, that's just an insane statistic. 0:22:59.119 --> 0:23:01.800 And you know, our listeners really need to remember that 0:23:01.840 --> 0:23:06.200 these weren't just any experts coming in to give testimony. 0:23:06.280 --> 0:23:09.959 This is the FBI. This is an organization that has 0:23:10.000 --> 0:23:14.800 a reputation for having attained higher knowledge, you know, knowing 0:23:14.840 --> 0:23:16.439 more than just everyday people. 0:23:17.520 --> 0:23:22.760 When an FBI examiner comes in, especially in a state case, 0:23:23.400 --> 0:23:26.800 great weight is given to what they say. It is 0:23:27.440 --> 0:23:31.360 very impressive to have the FBI show up and explain 0:23:32.080 --> 0:23:36.160 a discipline and tell you what something means in their experience. 0:23:36.720 --> 0:23:38.080 And that's what happened. 0:23:38.920 --> 0:23:42.240 In some cases, an FBI was asked to do hair 0:23:42.359 --> 0:23:46.680 examination when the local examiners couldn't make an association, which 0:23:46.720 --> 0:23:50.400 makes the whole thing even more questionable because the inquiry 0:23:50.440 --> 0:23:52.960 should end there. You shouldn't be able to try to 0:23:53.000 --> 0:23:56.600 find someone else who will give you the answer that 0:23:56.680 --> 0:24:01.560 you want. Also, they found that the FBI hair examiners 0:24:01.800 --> 0:24:05.639 kept their identity as law enforcement agents first and foremost. 0:24:06.359 --> 0:24:10.320 And they found that instead of acting like impartial scientists, 0:24:11.200 --> 0:24:14.919 the FBI lab culture at the time embraced the agent 0:24:15.040 --> 0:24:19.960 examiners acting like more like detectives, and that that approach 0:24:20.160 --> 0:24:23.840 should have been pulled back. And remember, no, you're independent. 0:24:24.320 --> 0:24:27.520 This is scientific. You're not part of the law enforcement 0:24:27.600 --> 0:24:29.720 investigative team. You're a scientist. 0:24:30.400 --> 0:24:33.640 So, Vanessa, you read transcripts from a ton of cases, 0:24:33.760 --> 0:24:37.359 A lot of testimony were there any that really stood 0:24:37.400 --> 0:24:39.320 out to you where you sat back and said, Wow, 0:24:39.400 --> 0:24:40.800 this is really bad. 0:24:41.960 --> 0:24:44.159 A couple of things where I thought I could not believe. 0:24:44.160 --> 0:24:47.159 This was the case where the examiner said that he 0:24:47.320 --> 0:24:53.360 had significant experience, you know, examining pubic cares from people 0:24:53.800 --> 0:24:58.800 from Mexico, and therefore he could exclude people from Mexico 0:24:59.160 --> 0:25:02.200 from having we did the pubic care in the case 0:25:02.240 --> 0:25:07.400 at hand. Obviously that was because the alternate suspects other 0:25:07.480 --> 0:25:09.080 than the defendant were from Mexico. 0:25:09.400 --> 0:25:10.920 So that was entirely made up. 0:25:11.040 --> 0:25:14.359 I mean, I can't even there's no point trying to 0:25:14.359 --> 0:25:17.440 be nice about it. That's not a thing anybody can 0:25:17.480 --> 0:25:21.000 ever say, and it was just made up. You can't 0:25:21.359 --> 0:25:24.880 say that a hair came from an individual of a 0:25:25.000 --> 0:25:27.679 particular racial group. They can look at the hair and 0:25:27.720 --> 0:25:30.879 talk about some of the ancestral origins and some of 0:25:30.920 --> 0:25:35.639 the classifications into groups at a huge broad level, which 0:25:35.800 --> 0:25:40.080 really wouldn't have value and you know, crime investigation, but 0:25:40.200 --> 0:25:43.640 they absolutely can't say that it did or did not 0:25:43.800 --> 0:25:48.680 come from a person from a certain country. So that's 0:25:48.880 --> 0:25:53.720 you know, that's pretty ridiculous. 0:26:01.119 --> 0:26:04.479 So after you review the transcripts from a case and 0:26:04.600 --> 0:26:08.600 Let's say you determine that you know, an expert or 0:26:08.640 --> 0:26:11.800 a so called expert came in and gave testimony and 0:26:11.920 --> 0:26:14.880 said things that were just outside the bounds of science, 0:26:15.880 --> 0:26:19.240 and there was a conviction. What happened next? What were 0:26:19.240 --> 0:26:20.560 the next steps of the review? 0:26:21.840 --> 0:26:27.560 I seek to assist folks in finding counsel and hooking 0:26:27.600 --> 0:26:30.439 them up with lawyers who could assist them to pursue 0:26:30.440 --> 0:26:33.480 any claims they might have. If that type of evidence 0:26:33.560 --> 0:26:36.719 was used in their case, they would do the DNA 0:26:36.840 --> 0:26:40.159 testing on the hair, or if no hair could be 0:26:40.240 --> 0:26:43.160 found after all these years, because these are old cases, 0:26:43.560 --> 0:26:47.080